Loading...
HomeMy WebLinkAbout02-07-22 Board of Ethics Agenda and Packet MaterialsA.Call meeting to order - 4pm Via Webex: https://cityofbozeman.webex.com/cityofbozeman/onstage/g.php? MTID=e9149b8f0b221e246a799413d3779788c Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting Via Phone: This is for listening only if you cannot watch the stream or channel 190 • Call-in toll number (US/Canada): 1-650-479-3208 • Access code: 2552 837 1004 Public Comment: If you are interested in commenting in writing on items on the agenda, please send an email to agenda@bozeman.net prior to 12:00pm on Monday before the meeting. You may also comment by visiting the City's public comment page. You can also comment by joining the WebEx meeting. If you do join the WebEx meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and someone will call you during the meeting to provide an opportunity to comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the City's video page (click the Streaming Live in the drop down menu), and available in the City on cable channel 190. B.Disclosures C.Changes to the Agenda D.Public Comment Please state your name and address in an audible tone of voice for the record. This is the time for individuals to comment on matters falling within the purview of the Committee. There will also be an opportunity in conjunction with each action item for comments pertaining to that item. Please limit your comments to three minutes. THE BOARD OF ETHICS OF BOZEMAN, MONTANA BOE AGENDA Monday, February 7, 2022 1 E.Action Items E.1 Review of the Daniel Zyvoloski Ethics Complaint Filed on December 8, 2021 (Crosby) F.FYI/Discussion G.Adjournment For more information please contact Mike Maas, City Clerk, agenda@bozeman.net Committee meetings are open to all members of the public. If you have a disability and require assistance, please contact our ADA coordinator, Mike Gray at 582-3232 (TDD 582-2301). 2 Memorandum REPORT TO:Board of Ethics FROM:Mike Maas, City Clerk Jordan Y. Crosby, Retained Counsel SUBJECT:Review of the Daniel Zyvoloski Ethics Complaint Filed on December 8, 2021 MEETING DATE:February 7, 2022 AGENDA ITEM TYPE:Administration RECOMMENDATION:Review of the Daniel Zyvoloski Ethics Complaint Filed on December 8, 2021 STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the community’s trust. BACKGROUND:See attached preliminary written analysis, complaint, and response. UNRESOLVED ISSUES:See attached preliminary written analysis. ALTERNATIVES:See attached preliminary written analysis. FISCAL EFFECTS:None Attachments: Preliminary Written Analysis.pdf Bozeman Ethics Complaint Letter 12.8.21.pdf Enclosures for Ethics Complaint Letter (12.8.21).pdf Bozeman Supplemental Ethics Complaint Letter 12.20.2021 (Relevant Information to 12.8.21 Ethics Complaint Letter).pdf Supplemental Ethics Complaint_Enclosures.pdf 2022-01-07 City's Response to Ethics Complaint.pdf Report compiled on: February 2, 2022 3 UGRIN ALEXANDER ZADICK, P.C. ATTORNEYS AT LAW #2 RAILROAD SQUARE, SUITE B P.O. BOX 1746 GREAT FALLS, MONTANA 59403-1746 TELEPHONE (406) 771-0007 FAX (406) 452-9360 E-MAIL frontdesk@uazh.com Website http://uazh.com January 17, 2022 VIA EMAIL ONLY Chairperson Sara Rushing Board Member Melissa Frost Board Member Carson Taylor Board of Ethics for the City of Bozeman srushing@BOZEMAN.NET mfrost@BOZEMAN.NET ktaylor@BOZEMAN.NET RE: Zyvoloski December 8, 2021, Ethics Complaint Preliminary Written Analysis Dear Board Members: As you are aware, my firm has been retained to serve as counsel and legal advisor to the Board of Ethics for the City of Bozeman (hereafter “Board”) regarding the December 8, 2021, Ethics Complaint (“Complaint”) brought by Daniel Zyvoloski. Pursuant to Section 2.03.640(D), Bozeman Municipal Code (“BMC”), the following is our preliminary written analysis. I. BACKGROUND A. BOARD PROCEDURE. Montana law provides that where, as here, a local government has established a panel to review complaints alleging violations of Title 2, chapter 2, part 1 of the Montana Code Annotated (hereafter “Montana Code of Ethics”), that panel “shall review complaints and may refer to the county attorney complaints that appear substantiated.” See § 2-2-144(5)(a), MCA. The Bozeman Board of Ethics is such a panel and must review complaints alleging that city public officials or public employees violated ANDREW T. NEWCOMER JAMES R. ZADICK SETH T. BONILLA GARY M. ZADICK ROGER T. WITT KEVIN C. MEEK JORDAN Y. CROSBY 4 January 17, 2022 Page 2 of 15 the Montana Code of Ethics or violated Bozeman’s Code of Ethics (Part I, Chapter 2, Article 3, Division 4, BMC). See Secs. 2.03.600(A)(3) and 2.03.640(E) and (M), BMC. Montana law further directs that the City establish rules and procedures applicable to the Board. See § 2-2-144(5)(a), MCA. The City has done this in Section 2.03.600, BMC, which outlines the Board’s authority, and Section 2.03.640, BMC, which summarizes the procedures for review of complaints. Specifically, following our written preliminary analysis, the Board shall “[a]t the next regular meeting, or within 30 days, whichever is sooner … review and consider the complaint and the city attorney’s analysis.” Sec. 2.03.640(L), BMC. At this meeting, after “giving due consideration” to the complaint, the Board can take the following action(s):  Dismiss the complaint (or portions thereof) based on the following grounds: o Failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; o Lack of jurisdiction over the matter; o The complainant’s failure to cooperate in the Board’s review and consideration of the complaint; or o Because the complaint is defective in a manner which results in the board being unable to make any sound determination. See Sec. 2.03.640(M)(1)(a)-(d), BMC;  Determine that no violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics has occurred. See Sec. 2.03.640(M)(2), BMC;  Determine the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics and schedule and conduct a hearing, within 30 days, to determine whether a violation has occurred. See Sec. 2.06.640(E), (L), and (M)(3) and Sec. 2.03.600(A)(3), BMC;1 or  Determine that further information must be obtained for the Board to decide whether the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; and 1 The Board must promptly send written notice of such determination to the accused and to the party who made the complaint. See Sec. 2.03.640(M)(3), BMC. 5 January 17, 2022 Page 3 of 15 o Conduct its own investigation with respect to any alleged violation. See Sec. 2.06.640(M)(4)(a), BMC; o Schedule the complaint for further review and consideration at a future time certain. See Sec. 2.06.640(M)(4)(b), BMC;2 o Refer the complaint to any appropriate authorities for criminal investigation. See Sec. 2.06.640(M)(4)(c), BMC; o Refer the complaint, if it appears to be substantiated, to the county attorney or city attorney for prosecution. See Sec. 2.06.640(M)(4)(d), BMC; or o Refer the complaint, along with the board’s findings and conclusions, to any appropriate administrative authority for disciplinary action or other suitable remedial action. See Sec. 2.06.640(M)(4)(e), BMC.3 The Board may not reverse or modify a prior action of the Mayor, City Commission, or an officer or employee of the City. Instead, “[i]f the board finds a prior action of the mayor, the city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body.” See Sec. 2.03.620, BMC. Once the Board has made its final determination, it shall issue “written findings of fact and conclusions and may issue any additional reports, opinions and recommendations as it deems advisable under the circumstances.” See Sec. 2.06.640(M)(5), BMC. All reports should be reviewed by our office prior to issuance. Id. B. MR. ZYVOLOSKI’S COMPLAINT. Mr. Zyvoloski submitted his written Complaint on December 8, 2021, and request for a “formal advisory opinion.” Compl., pg. 1. The Complaint originates in a dispute regarding whether and how a particular home-based daycare was subject to business licensing requirements by the City. Mr. Zyvoloski owns and lives in property adjacent to the daycare in question. 2 The Board must promptly send written notice of such determination to the accused and to the party who made the complaint. See Sec. 2.03.640(M)(4)(b), BMC. 3 While the Board has no independent administrative authority (Sec. 2.06.590.A.1, BMC) it may make “any recommendation to any city administrator at any level of supervision” if the Board finds the recommendation advances the objectives of the Bozeman Code of Ethics. If it is determined that misconduct or malfeasance has occurred, the Board shall refer the matter to the city manager, city attorney or to the city commission, as warranted. See Sec. 2.06.640(M)(4)(e), BMC. 6 January 17, 2022 Page 4 of 15 The Complaint alleges that staff within the City Attorney’s Office “deviated from the City’s Standards of Conduct, created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions as defined and identified in the City’s Code of Ethics by their procedural misconduct in connection with the disputed licensing of a home-based daycare in violation of the BMC.” Compl., pg. 1. Mr. Zyvoloski’s Complaint argues that it is “not about the merits of the daycare licensing decision in dispute. Rather, the complaint arises from the procedural improprieties surrounding that disputed licensing decision, the subsequent appeal, and the related administrative rule change.” Mr. Zyvoloski ultimately claims that the process was not “fair and impartial.” Id. Mr. Zyvoloski particularly claims that Assistant City Attorney Kelley Rischke, perhaps at the direction of City Attorney Greg Sullivan, violated his procedural rights by allegedly canceling a City Commission hearing date and thereby allegedly denying Mr. Zyvoloski’s claimed appeal rights under the Bozeman Municipal Code, particularly Sec. 12.02.190. Mr. Zyvoloski also argues that the City’s promulgation of a new administrative rule requiring daycare licensing and subsequent communications with the daycare at issue regarding this new licensing requirement displayed unethical “favoritism, partiality and bias,” constituting an alleged conflict of interest, by allegedly advancing or protecting “the personal and/or financial interests of the home-based business that was the subject of our pending appeal” outside of the “proper channels of government structure[.]” Mr. Zyvoloski extends these arguments to the City’s provision of assistance to the daycare when completing the new business license application. Mr. Zyvoloski claims that the above City conduct specifically violated the BMC’s standards of conduct at Sec. 2.03.490, BMC and the conflict-of-interest prohibitions at Sec. 2.03.520, BMC. Mr. Zyvoloski’s Complaint repeats prior arguments presented to the City Commission that the newly promulgated rule requiring certain daycare business licenses exceeds the authority delegated to the Community Development Director under Sec. 12.02.050, BMC. Mr. Zyvoloski concludes his initial Complaint by asserting that he could have alternatively filed his concerns with the Commissioner of Political Practices pursuant to §§ 2-2-136 and -144, MCA. Mr. Zyvoloski submitted “supplemental information” to the Board on December 20, 2021. Mr. Zyvoloski’s December 20, 2021, letter alleges that this supplemental information provides “a clear picture” of the Assistant City Attorney’s allegedly improper communication with the daycare operator about filling out the newly required business license. Mr. Zyvoloski claims these communications “secured a significant personal and/or financial favor for a single home-based business owner and influenced the Community Development Department to unlawfully pass a new Administrative Rule without public review or participation and undermined our procedural due process right to provide public comment before the business license was issued.” Mr. Zyvoloski claims that the generally-applicable Rule was improperly promulgated only “to dismiss one single administrative appeal[.]” Mr. Zyvoloski concludes his supplemental letter by claiming that the Assistant City Attorney improperly acted to “remove the opportunity to consider public participation as part of the business licensing process” and to “sideline” his initial appeal, which requested implementation of those same business license 7 January 17, 2022 Page 5 of 15 requirements. Mr. Zyvoloski requests “remedial action to preserve the public’s trust in our local government.” C. THE CITY’S RESPONSE. Bozeman City Attorney Sullivan and Assistant City Attorney Rischke submitted a response to Mr. Zyvoloski’s Ethics Complaint on January 7, 2022 (hereinafter “City’s Response”). The City’s Response argues that the City did not violate either the Bozeman or Montana Code of Ethics and requests that this Board dismiss Mr. Zyvoloski’s Ethics Complaint with prejudice, meaning that it may not be re-filed. City’s Resp., pg. 1. The City’s Response specifically argues that there was no implication or violation of Mr. Zyvoloski’s due process rights because the City complied with the BMC’s required procedures regarding Mr. Zyvoloski’s license complaint and appeal, no BMC provisions barred the City either from taking action on Mr. Zyvoloski’s license complaint or amending City administrative regulations in response to the complaint, that City employees were permitted to be involved in the license complaint process and resolution, and that Mr. Zyvoloski received extensive “due process” regardless through the City’s evaluation of Mr. Zyvoloski’s license complaint and appeal, which resulted in the relief Mr. Zyvoloski requested—the implementation of a business license requirement for home-based daycares. The City further responds to Mr. Zyvoloski’s Complaint by arguing his claims of ethical violations are fatally vague or without factual basis. D. FACTUAL BACKGROUND OF THE DISPUTE. Because Mr. Zyvoloski confines his Complaint to the process surrounding the City’s interaction with his prior complaint regarding daycare business licensing, a review of the process regarding Mr. Zyvoloski’s licensing complaint is necessary. Mr. Zyvoloski originated the daycare business licensing dispute in July of 2021 by submitting a comment to the City Commission requesting that the Commission “adopt an ordinance or revision to the Bozeman Municipal code that would allow residents of Bozeman to participate in the review of Group Day Care Home locations.” Compl. Enclosures, pg. 15 of 43. Mr. Zyvoloski’s comment requested the implementation of licensing and enforcement procedures and consideration of the issue at a commission meeting. Id. Mr. Zyvoloski indicated that his comment was prompted by the recent opening of a home- based daycare in his neighborhood and its claimed impacts upon this neighborhood. Id. In August of 2021, Mr. Zyvoloski, through counsel and pursuant to Sec. 12.02.240, BMC, submitted a written complaint (hereinafter the “licensing complaint”) against the operators of the at-issue daycare to the City of Bozeman Community Development Director Marty Matsen. The licensing complaint alleged that the daycare was operating without a City business license and was accordingly “out of compliance with Section 12.012.010 of the [Bozeman Municipal] Code.” Compl. Encl., pg. 1. Mr. Zyvoloski’s licensing complaint requested investigation of this alleged violation and that “appropriate action be taken under Chapter 12 of the Code.” Id. 8 January 17, 2022 Page 6 of 15 On September 30, 2021, the City, through Director Matsen, responded to Mr. Zyvoloski’s licensing complaint via letter. The City disagreed that the home-based daycare was subject to City business licensing requirements. The City’s response noted that group daycares are authorized in residential areas under state law (citing § 76-2-412, MCA), that the City R-1 zoning designation applicable to the property provided group day cares are permitted principal uses (citing Sec. 38.310.030, BMC); and that the City did not require business licenses for business, such as day cares, that the State of Montana licensed and registered and where state law otherwise exempted such local business licensure. Compl. Encl., pg. 2 of 43. Mr. Zyvoloski’s counsel replied on September 30, 2021, indicating that Zyvoloski would appeal Director Matsen’s decision via Sec. 12.02.190, BMC unless “the City can reference a clearly applicable existing exemption in state law or the BMC” that exempted home-based daycares from City business license requirements. Compl. Encl., pg. 4 of 43. Mr. Zyvoloski appealed Director Matsen’s decision on October 6, 2021. See Compl. Encl., pg. 6 of 43. This appeal argued the subject daycare had failed to obtain a necessary building permit regarding the installation of egress windows, that the owner of the daycare had previously failed to obtain a business license for an unrelated business, that the permissibility of the daycare in the R-1 zoning area was “moot” because City business license requirements did not depend on zoning, and that neither the BMC nor Montana state law actually exempted home-based daycares from local business licensing requirements. See Compl. Encl., pgs. 6-8 of 43. The City responded to both Mr. Zyvoloski’s September 30, 2021, letter and October 6, 2021, appeal with an October 15, 2021, letter from Assistant City Attorney Rischke. Compl. Encl., pg. 16 of 43. This response indicated that the subject daycare “recently applied for and received a City of Bozeman Business License,” which the City argued made Mr. Zyvoloski’s license complaint resolved and the related appeal to the City Commission moot. Id. The October 6, 2021, letter further indicated that the daycare “is compliant with DPHHS, properly registered with the State, and is in compliance with City zoning codes.” Id. With regards to the alleged building permit violation, the letter indicated that “[t]he building code violation and the Stop Work Order issued in relation to the installation of egress windows at the day care was due to a mistake on the City’s part and was quickly remedied.” Id. The City’s Response indicates that the City engaged in ongoing consideration of Mr. Zyvoloski’s argument that home-based daycares were not exempt from City business license requirements. City Resp., pg. 3. This “reevaluation” of City policy resulted in the City promulgating a new administrative rule on October 13, 2021—Administrative Rule 2021-01 (“the Rule”)—requiring certain daycares to obtain City business licenses. City Resp., Ex. F. The text of the Rule indicates that the City Director of Community Development based authority for the new rule upon Sec. 12.02.050.A1, BMC, which provides that: “the program administrator shall promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter. All rules are subject to commission review and modification.” The Rule also indicates that daycare businesses must by licensed or registered with DPHHS, that fees associated with new license applicants were waived “for all types of day care businesses” and that “[i]nspections by City officials for new license applicants are waived unless the program administrator believes inspection(s) are reasonably necessary for code enforcement purposes 9 January 17, 2022 Page 7 of 15 or to comply with DPHHS licensure or registration requirements.” City Resp., Ex. F. Assistant City Attorney Rischke informed the subject daycare of the new licensing requirement and the daycare applied for and was issued a business license (No. 21-00069197) on October 13, 2021. See City Resp., Ex. G. Mr. Zyvoloski responded to the promulgation of the Rule requiring business licenses for daycares—as he initially requested—by appealing the Rule promulgation and the resulting issuance of a business license to the City Commission on October 27, 2021. City Resp., Ex. G. This second appeal argued the City “issued a business license in violation of the terms of the BMC” due to alleged errors on the license application and requested that the City Commission reverse issuance of the permit, require the daycare to cease operating until a new permit was obtained, and impose additional requirements regarding signature of a certain “Home-Based Business Acknowledgement Form” and issuance of a special use permit. Id. The City Commission heard Mr. Zyvoloski’s second appeal on December 14, 2021. Both City staff and Mr. Zyvoloski (and counsel for Mr. Zyvoloski) were permitted to present on the appeal. The presentation by both parties—Mr. Zyvoloski and the City—directly considered the procedural propriety of the promulgation of Administrative Rule 2021-01, the subsequent issuance of a business license to the daycare, and dismissal of Mr. Zyvoloski’s prior appeal with prejudice. Assistant City Attorney Rischke’s presentation argued that the Rule was reasonable to regulate daycare businesses, that promulgation of the Rule was “well within the rulemaking authority granted to it [the City] under the business license chapter of the Bozeman Municipal Code,” and that issuance of the license was proper. See Dec. 14, 2021, Recording of Bozeman City Commission, at 1:44:30.4 Assistant City Attorney Rischke explained that Mr. Zyvoloski successfully persuaded the City to promulgate the new Rule and require family and group daycare business licenses. Id. at 1:47:15. She further explained why current home-based business licensing requirements were ill-fitted to the regulation of family and group daycares, meaning that promulgation of the new Rule was necessary to address Mr. Zyvoloski’s concerns. Id. at 1:49:28. Assistant City Attorney Rischke disputed any alleged special treatment of the subject daycare in the issuance of the license, which was required by the promulgation of the new Rule that Mr. Zyvoloski prompted. Id. at 1:54:00. Mr. Zyvoloski argued that the new Rule “breaks with” the City’s charter and was procedurally improper. He requested that the Commission “vote to overturn this daycare business license” and “invalidate the administrative rule that was created for this specific business as both were unlawfully adopted by the City.” Id. at 2:15:00. Mr. Zyvoloski’s counsel argued that Chapter 38 of the BMC applied to Chapter 12 of the BMC, that the day care met the definition of a home-based business, and that because there was no exception for group daycares under state and local laws, home-based daycares must be reviewed under BMC provisions “applicable to all home-based businesses.” Id. at 2:16:00. This argument allegedly included obtaining a special use permit if the daycare could not meet “accessory use” requirements of a home-based business. Id. Counsel further argued that home-based business 4 Available at: http://bozeman.granicus.com /player/clip/2239319f-b8d5-4dd9-afe2- 05782b9c08cc?meta_id=db336336-1865-4299-bbc1-b231349a0fe6&redirect=true   10 January 17, 2022 Page 8 of 15 regulation of daycares under Chapter 38 of the BMC would provide “necessary” regulation of external effects of those daycares on neighborhoods and that promulgation of the Rule exceeded the scope of the Community Development Director’s authority. Id. at 2:19:40. Mr. Zyvoloski’s counsel noted that other municipalities similarly required business licenses for home day cares, but was unaware if this extended to requiring special use permits as well. Id. at 2:33:42. City Commissioners questioned the parties on the Community Development Department’s promulgation of the Rule and issuance of the license. These questions explored whether the Department provided special treatment or instead attempted to provide the same “good customer service” that is generally offered to all applicants and community members, or whether the City Commission properly delegated authority to the Department to promulgate administrative rules. See, e.g., id. at 1:58:00- 2:00:00. Commissioners questioned and considered the distinctions between the business license code in Chapter 12 of the BMC and the development code provisions requiring special use permits in Chapter 38 of the BMC. Id. at 2:01:00; 2:09:23. Commissioners further raised whether requiring a special use permit would effectively remove home-based daycare as a permissive use under current City zoning ordinances. Id. at 2:37:00. Commissioner comments indicated that they viewed promulgation of the Rule as within the Community Development Director’s delegated authority (see 12.02.050(A)(1), BMC) and viewed any assistance with filling out the application required by the new Rule as proper customer service, not improper favoritism. Id. at 2:54:00. Commissioners further disagreed that daycares met the definition of home-based businesses under Chapter 38 of the BMC or that requiring special use permits for home- based daycares was advisable policy. Id. at 2:58:00; 3:00:00. The City Commission voted 5-0 to uphold the decision of Director Matsen to adopt Administrative Rule 2021-01 and issue a business license to the subject daycare and dismissed the appeal with prejudice. See The City Commission Meeting of Bozeman, Montana, Minutes December 14, 2021.5 II. ANALYSIS A. THE BOARD OF ETHICS IS THE PROPER FORUM FOR MR. ZYVOLOSKI’S ETHICS COMPLAINT. Initially, Mr. Zyvoloski incongruously alleges that he could have brought his Complaint before the Commissioner on Political Practices (“COPP”) but deferred to the City Board of Ethics out of deference to the Board’s expertise. The assertion of potential COPP jurisdiction is an incorrect reading of Montana law. Section 2-2-144, MCA, provides that, where a local government has established a board of ethics, “a complaint must be referred to the panel prior to making a complaint to the county attorney.” § 2-2- 144(5)(b), MCA (emphasis added). A board of ethics “shall” refer complaints initially filed before it to the COPP “if the complaint is against the county attorney[.]” § 2-2-144(5)(a). Section 2-2-136, MCA, similarly 5 Available at http://bozeman.granicus.com /player/clip/2239319f-b8d5-4dd9-afe2- 05782b9c08cc?meta_id=db336336-1865-4299-bbc1-b231349a0fe6&redirect=true.   11 January 17, 2022 Page 9 of 15 provides that the COPP only has concurrent jurisdiction over ethics complaints where a local government has established a board of ethics “over complaints against a county attorney that are referred by a local government review panel pursuant to 2-2-144 or filed by a person directly with the commissioner pursuant to 2-2-144(6).” Mr. Zyvoloski is incorrect that COPP possesses concurrent jurisdiction over his Complaint––his Ethics Complaint is not against the Gallatin County Attorney. Mr. Zyvoloski’s Ethics Complaint must be initially heard by this Board of Ethics. B. ALLEGED DUE PROCESS VIOLATIONS ARE NOT ETHICAL VIOLATIONS AND MR. ZYVOLOSKI WAS PROVIDED AMPLE PROCESS REGARDLESS. Mr. Zyvoloski’s “due process” argument appears to claim that the City improperly deprived him of a hearing by promulgating the new Rule and because the City Attorney’s office took various actions in the scheduling of his second appeal. The City responds that the BMC dictated the procedures for Mr. Zyvoloski’s appeals and that these procedures did not grant Mr. Zyvoloski the due process rights he claims. Due process is a constitutional limitation on the deprivation of life, liberty, or property without appropriate procedure. City of Missoula v. Mountain Water Co., 2016 MT 183, ¶ 24, 384 Mont. 193, 378 P.3d 1113. Procedural due process rights—i.e., what sort of process is due—vary according to the specific situation. Montanans for Just. v. State ex rel. McGrath, 2006 MT 277, ¶ 30, 334 Mont. 237, 146 P.3d 759. Procedural due process, however, is only required if a party makes a showing “that a property or liberty interest exists,” as “[i]f there is a property or liberty interest at stake, procedural due process requires that a person ‘must be given an opportunity to explain, argue and rebut any information that may lead to a deprivation of life, liberty, or property.’” State v. Samples, 2008 MT 416, ¶ 29, 347 Mont. 292, 198 P.3d 803. A party “cannot establish a property interest in a procedure itself,” and “a public official’s discretion may prevent the creation of a property right sufficient to support a claim that due process was denied[.]” ISC Distributors, Inc. v. Trevor, 273 Mont. 185, 192, 903 P.2d 170, 174 (1995). The Montana Supreme Court has held, for example, that failure to notify a water permit applicant of a city commission meeting regarding amendment of the ordinance regarding how many water permits the applicant would need was harmless error “at best.” Mogan v. City of Harlem, 238 Mont. 1, 6, 775 P.2d 686, 689 (1989). Or, the Montana Supreme Court has held that the applicant seeking transfer of a conditional use permit did not suffer a due process violation when a board of adjustment declined to transfer his CUP because discretion about whether to issue or transfer a CUP was vested in the board, which denied the applicant a sufficient property right to support a due process claim. Beasley v. Flathead Cty., 2009 MT 121, ¶ 15, 350 Mont. 177, 206 P.3d 915. More broadly, prohibiting a party from even commencing an action “regarding property in which they have no interest does not violate their due process rights[.]” Langemeier v. Kuehl, 2001 MT 306, ¶ 28, 307 Mont. 499, 40 P.3d 343. Mr. Zyvoloski did not face any alleged deprivation of life, liberty, or property in the context of his initial complaint and appeal seeking the implementation of business license requirements for certain daycares. He has not pointed to any sufficient property interest granted to him by either state law or the BMC, regardless. Instead, Mr. Zyvoloski focuses upon an allegedly improper cancelling of his first appeal 12 January 17, 2022 Page 10 of 15 to the City Commission after the City acted, at Zyvoloski’s ostensible urging, to impose business license requirements on the subject daycare. Montana law does not recognize a procedural due process right in abstract procedure without a cognizable liberty or property right that would be implicated by that procedure. Trevor, 273 Mont. at 192. Mr. Zyvoloski’s lack of any legally cognizable property interest in the dispute precludes him from establishing a procedural due process claim here. Beasly, ¶ 16. It must be stressed that Mr. Zyvoloski’s initial complaint requested an investigation of the daycare’s lack of a license and “appropriate action” under Chapter 12 of the BMC. His first appeal to the City Commission centered upon his argument that a business license was required, and Mr. Zyvoloski’s counsel offered to “drop this appeal” if the City referenced an applicable exemption to local business licensing requirements for group daycares. Instead, the City responded to Mr. Zyvolski’s Complaint by engaging in the requested considered investigation and utilizing delegated authority under Chapter 12 to promulgate a generally applicable licensing requirement on certain daycares. This action went beyond Mr. Zyvoloski’s appeal request to merely delineate a basis for exemption by affirmatively imposing his requested licensing requirements. In our opinion, Assistant City Attorney Rischke correctly determined that granting Mr. Zyvoloski greater affirmative relief than his appeal appeared to request mooted his appeal. Mootness concerns “whether it is possible to grant some form of effective relief to the appellant.” Briese v. Montana Pub. Employees' Ret. Bd., 2012 MT 192, ¶ 14, 366 Mont. 148, 285 P.3d 550. Mr. Zyvoloski’s initial complaint requested investigation of the daycare’s lack of a business license, appropriate action under Chapter 12 in response to the lack of a business license, and, on appeal, reconsideration of the City’s position that the daycare did not require a business license. Mr. Zyvoloski was substantively granted all of these forms of relief: the City investigated the issue and was persuaded a license was required. The City utilized delegated authority to craft an administrative regulation that would not only address the present daycare, but prospectively and proactively require all other similarly situated daycares to obtain business licenses. The City affirmatively granted Mr. Zyvoloski the reconsideration his appeal requested. The issue Mr. Zyvoloski presented—the daycare’s lack of a business license—ceased to exist after the City promulgated a regulation generally requiring such a license and the daycare obtained that license. Mr. Zyvoloski did not have an abstract right to further pursue an appeal where the issue he presented— requiring a license—was mooted by the City granting the relief he sought during that appeal. Country Highlands Homeowners Ass'n, Inc. v. Bd. of Cty. Commissioners of Flathead Cty. ex rel. Hall, 2008 MT 286, ¶ 22, 345 Mont. 379, 191 P.3d 424 (finding that a county’s intervening adoption of a new growth policy mooted a pending challenge to a zoning change based upon a prior growth policy). The City was free to take such action mooting Mr. Zyvoloski’s claim, just as the county in Country Highlands was free to amend the growth policy at issue, as no provision of the BMC operated to stay or enjoin City conduct while the appeal was pending. Finally, and as the City points out in its response, in our opinion, Mr. Zyvoloski was afforded ample process in conformity with the requirements of the BMC. Section 12.02.190, BMC afforded Mr. Zyvoloski a procedural right to appeal the City’s initial conclusion that no license was needed––and Mr. Zyvoloski exercised that right twice. This section, however, does not obligate the City Commission to consider a mooted appeal, just as Montana’s rules of appellate procedure do not obligate a court to hear a mooted appeal. See Country Highlands, ¶ 22. And, Mr. Zyvoloski was ultimately heard by the City 13 January 17, 2022 Page 11 of 15 Commission on December 14, 2021, pursuant to his second invocation of his appellate rights under Section 12.02.190, BMC, where he and his counsel were provided a full opportunity to contest promulgation of the Rule and issuance of the permit. In our opinion, Mr. Zyvoloski has failed to articulate the sort of liberty or property interest that would give rise to procedural due process rights under Montana law. Further, the City’s intervening action legally mooted Mr. Zyvoloski’s initial appeal, removing any need for further “process” or procedure. And, importantly, Mr. Zyvoloski was ultimately afforded a meaningful opportunity to be heard on appeal to the City Commission on the totality of his arguments. Procedural due process was not implicated, but proper process was ultimately provided regardless. It is our recommendation that the Board dismiss Mr. Zyvoloski’s due process arguments with prejudice for failure to state a claim that constitutes a violation of either the Bozeman or Montana Code of Ethics. See Sec. 2.03.640(M)(1)(a) BMC. C. MR. ZYVOLOSKI HAS FAILED TO ARTICULATE A “CONFLICT OF INTEREST” WITHIN THE SCOPE OF THE BOZEMAN OR MONTANA CODES OF ETHICS. Mr. Zyvoloski argues that the City’s promulgation of the Rule during the pendency of his original complaint “clearly meets the City’s definition of Conflict of Interest[.]” Compl., pg. 3. He relatedly argues that Assistant City Attorney Rischke’s subsequent communication with the daycare provider about the new business license requirements and application process constituted a conflict of interest to secure a favorable outcome for the subject daycare. He also appears to argue that the City’s Attorney’s alleged scheduling of his December 14, 2021, appeal constituted a conflict of interest. The City responds that Mr. Zyvoloski’s claims regarding allegedly improper assistance to the subject daycare do not constitute a “conflict of interest” as defined by the BMC Code of Ethics. Section 2.02.520, BMC provides the relevant prohibitions against a “conflict of interest.” When read as a whole, that section prohibits City officials and employees from engaging in business which conflicts with City duties or taking official action where the official or employee “has a financial or personal interest in a transaction or matter with the city.” See, e.g., Sec. 2.03.520(B) & (C), BMC. The BMC Code of Ethics also prohibits, as an improper conflict of interest, employees, or officials from representing or appearing on behalf of individuals or entities in proceedings or transactions before the City. See Sec. 2.03.520(E) and (F), BMC. The Code of Ethics defines a “financial interest” as ownership, a contractual relationship, business relationship, or other interest “which will result in a monetary or other material benefit to an official or employee[.]” See Sec. 2.02.470(6), BMC. A “personal interest” is defined as “any interest in the matter which would affect the action of the official or employee other than a financial interest, and other than an interest because of membership in, or affiliation with, but not employment by a social, fraternal, charitable, service, educational, religious, governmental, health service, philanthropic, cultural, or similar nonprofit institution or organization.” See Sec. 2.03.470(10), BMC. In our opinion, the City correctly points out that Mr. Zyvoloski has failed to allege any “financial interest” by any City employee in the subject daycare. Mr. Zyvoloski also does not allege any “personal interest” beyond a vague allegation that City officials desired the subject daycare to become licensed. 14 January 17, 2022 Page 12 of 15 The City’s response correctly points out that whether the financial or personal interest of the subject daycare was furthered by City action is irrelevant under the controlling “conflict of interest” definitions. Indeed, any business license applicant’s personal or financial interest would seemingly be furthered by any City action facilitating the application. But this does not constitute an improper “conflict of interest” as defined by the BMC, as the BMC Code of Ethics instead prohibits financial or personal interests of City officials or employees improperly influencing City policy. There is no indication in the record that any City employee or official acted, either through promulgation of the Rule or assistance with the daycare’s subsequent application, to improperly further that employee or official’s financial or personal interests. The Montana Code of Ethics at § 2-2-102(6), MCA, analogously defines “private interest” to mean an ownership interest in a business, a creditor interest, employment or prospective employment, ownership in real property, a loan, or a directorship or officership in a business. The Montana Supreme Court has previously held that a public official lacked an improper private interest where that official did not receive compensation, benefit, or gain from the entity in question. See Mountain States Ins. Co. v. State, By & Through Bd. of Hail Ins., Dep't of Agric., 218 Mont. 365, 369, 708 P.2d 564, 567 (1985). That is true here—there is no indication or claim that any City official or employee derived any financial or personal gain or benefit from any action taken in response to Mr. Zyvoloski’s complaints and appeals. It is our opinion that Mr. Zyvoloski has failed to demonstrate the City took any action in response to his complaints or appeals due to an improper “conflict of interest” as defined by the BMC and Montana law. It is our recommendation that the Board dismiss Mr. Zyvoloski’s conflict of interest claims with prejudice pursuant to Section 2.03.640(M)(1)(a), BMC. D. THE CITY DID NOT DEVIATE FROM THE “STANDARDS OF CONDUCT.” Mr. Zyvoloski argues that the City’s actions violated standards of conduct at Sec. 2.03.490, BMC. He asserts that Assistant City Attorney Rischke violated the BMC standards of conduct to “secure a favorable outcome for a specific home-based daycare’s private and/or financial interests.” Mr. Zyvoloski’s “standards of conduct” allegations appear to concern the same City actions responding to his licensure complaint and two appeals—namely promulgating the Rule, assisting the daycare apply for a license under the new rule, and scheduling Mr. Zyvoloski’s second appeal hearing. The City responds that Mr. Zyvoloski misunderstands City action and the prohibitions in the relevant standards of conduct. The BMC Code of Ethics “standards of conduct” generally require fair, impartial, moral, and honest discharge of City responsibilities. See Sec. 2.03.490, BMC. It is our opinion that Mr. Zyvoloski has failed to demonstrate that the City’s actions in promulgating the Rule, assisting with the daycare’s license, dismissing the first appeal, or setting the second appeal were partial, unfair, immoral, or dishonest. As described above, Mr. Zyvoloski succeeded in convincing the City to require business licenses for certain daycares. The City Commission has expressly delegated administrative authority to the Community Development Director to “promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter.” 15 January 17, 2022 Page 13 of 15 See Sec. 12.02.050, BMC. Any promulgated rules are “subject to commission review and modification” as a check on agency authority. Id. Importantly, in our opinion, the City exercised its administrative discretion to promulgate a generally applicable rule that operates to ensure future daycares within the scope of the Rule are required to obtain business licenses. The general application of the Rule, promulgated to impose a new requirement sought by Mr. Zyvoloski, strongly suggests that the Rule was impartially developed to apply to a broad range of future daycare applicants, not just the subject applicant here. This includes the generally applicable waiver of a licensure fee. Equally importantly, the City Commission exercised its right to review the Rule and approved it by a vote of 5-0. It is also our opinion that the record is devoid of any evidence that the City assisted the daycare with applying for a business license in a dishonest manner outside the normal range of interactions with any potential applicant for a City license. It must be emphasized again that the City acted to promulgate a new Rule and impose new requirements on certain daycares at Mr. Zyvoloski’s suggestion. And, as several Commissioners noted, the City endeavors to generally assist all applicants rather than reject applications for minor errors. Finally, in our opinion, Mr. Zyvoloski has not offered any evidence beyond broad speculation that the City Attorney’s office delayed consideration of his second appeal to disadvantage his presentation. The record of the December 14, 2021, hearing instead demonstrates that Mr. Zyvoloski and his counsel were allowed to fully present the same substantive arguments that motivated his licensure complaint from the beginning. There is no dishonest prejudice to Mr. Zyvoloski apparent in the record. It is thus our recommendation that the Board dismiss Mr. Zyvoloski’s “standards of conduct” allegations with prejudice pursuant to Section 2.03.640(M)(1)(a), BMC. E. THE CITY’S ACTIONS DID NOT CONSTITUTE “IMPROPER GOVERNMENT ACTIONS.” Mr. Zyvoloski generally alleges that the above-described City conduct constituted an “improper government action” under the BMC Code of Ethics. The City responds that Mr. Zyvoloski has failed to provide specific support for the “improper government action” allegations and that, regardless, the allegations overlap with the above claims and are similarly without merit. As relevant here, an “improper government action” is an action that violates the standards of conduct in the BMC Code of Ethics, violates standards in the Montana Code of Ethics in Title 2, chapter 2 of the Montana Code Annotated, or is intended to harass, intimidate, or retaliate against a member of the public for protected conduct. See Sec. 2.03.470(8), BMC. The BMC Code of Ethics requires complainants to specifically describe the factual bases for alleged ethical violations. See Sec. 2.03.640(B), BMC. In our opinion, Mr. Zyvoloski does not offer separate support for his “improper government action” claims beyond a cursory connection with the above allegations. 16 January 17, 2022 Page 14 of 15 It is our recommendation that the Board dismiss Mr. Zyvoloski’s “improper government actions” allegations with prejudice pursuant to Section 2.03.640(M)(1)(a), BMC. F. THE CITY’S ACTIONS DID NOT BREACH THE PUBLIC TRUST. Mr. Zyvoloski cursorily claims that the above City actions breached the “public trust” as defined in the Montana Code of Ethics. The City responds that Zyvoloski has failed to substantiate the alleged public trust violation and that, regardless, the City did not breach the Montana Code of Ethics. The City’s first argument is correct. Neither Mr. Zyvoloski’s initial Complaint, nor his supplementation, developed or supported his “public trust” argument in a manner different from the above allegations. The BMC specifically requires complainants to provide specific factual support for alleged ethical breaches, and Montana law broadly provides that courts will neither consider unsupported issues or arguments nor formulate arguments for a party. Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246, ¶¶ 42-43, 358 Mont. 193, 244 P.3d 321. It is our opinion that Zyvoloski’s “public trust” allegations should be dismissed with prejudice, in line with the above conclusions, pursuant to Section 2.03.640(M)(1)(a), BMC. III. CONCLUSION Mr. Zyvoloski’s Complaint presents what amounts to policy disagreements regarding business license regulation of certain daycares. Mr. Zyvoloski would prefer certain daycares be subjected to additional regulation. Mr. Zyvoloski fully presented these same arguments to City officials and to the City Commission. Mr. Zyvoloski succeeded in changing City regulations regarding daycare business licensure. This regulation was affirmed by the City Commission in full view of Mr. Zyvoloski’s arguments, as was issuance of the business license to the daycare. That the promulgated regulation did not fully comport with Mr. Zyvoloski’s legal, or policy arguments, is not an ethical violation, especially where discretion over promulgating or affirming rules is granted to City officials and the City Commission. In our opinion, Mr. Zyvoloski’s policy-based disagreements with certain City actions do not constitute ethical violations as defined by the BMC or Montana Code Annotated and within the purview of this Board. Moreover, Zyvoloski was granted a full opportunity to be heard on these same arguments, and the City Commission rejected these arguments. Zyvoloski has failed to substantiate any ethical violation attending the policy decisions at issue. It accordingly appears that Mr. Zyvoloski actually requests a substantive policy change, attempting to utilize the Board of Ethics process as a forum to appeal and overturn discretionary policy decisions that lacked any ethical violation. The BMC, however, squarely prohibits this Board from ordering such policy changes as a remedy. See Sec. 2.03.620, BMC (providing that “The board does not have the authority to reverse or otherwise modify a prior action of the mayor, city commission, or an officer or employee of the city. If the board finds a prior action of the mayor, the city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered.”). Dismissal with prejudice is appropriate in this situation, where the complainant most clearly advances policy disagreements, not ethical violations. 17 18 Page 1 December 8, 2021 City of Bozeman Board of Ethics c/o Office of the City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: City of Bozeman—Code of Ethics Complaint (Improper Government Actions, Standards of Conduct Violation, and Conflict of Interest Violation) Bozeman Board of Ethics and City Clerk Mass: This letter serves as a written Code of Ethics complaint submitted in accordance with Bozeman Municipal Code (BMC) § 2.03.640—Procedures for Hearing Complaints, and a request for a formal advisory opinion with respect to the following alleged conduct: As described in more detail below, the staff of the City of Bozeman Attorney’s Office, specifically Assistant City Attorney Kelly Rischke, acting independently or at the direction of the City Attorney, deviated from the City’s Standards of Conduct, created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions as defined and identified in the City’s Code of Ethics by their procedural misconduct in connection with the disputed licensing of a home-based daycare in violation of the BMC. To be clear, this complaint is not about the merits of the daycare licensing decision in dispute. Rather, the complaint arises from the procedural improprieties surrounding that disputed licensing decision, the subsequent appeal, and the related administrative rule change. This was not a fair and impartial process and the improprieties outlined below need to be acknowledged and addressed. Please confirm this letter has been provided within three working days of receipt by the City Clerk’s Office to the Board of Ethics, as well as City Attorney Greg Sullivan and Assistant City Attorney Kelly Rischke, whose actions are the subject of this filed complaint, as required by BMC § 2.03.640.C. Facts Which Form the Basis for This Complaint Specific actions and decisions which are relevant to the subject complaint include: -On August 31, 2021, we submitted a letter to the City of Bozeman’s Community Development Director indicating that a home-based daycare was in violation of the BMC, as it had not applied for or obtained a City Business License, as required under the existing plain terms of the BMC’s Business Licensing provisions. -On September 21, 2021, after indicating that they were waiting for direction from the City Attorney’s Office, we received a formal letter from the Director of Community Development stating, “the City does not require any licensure of day care businesses beyond what is required by state law.” 19 Page 2 -On September 30, 2021, we submitted a letter informing the City that we are planning to appeal the Director of Community Development’s decision to the City Commission that the home-based daycare does not need to obtain a Business License. -On October 6, 2021, we filed a formal appeal per BMC § 12.02.190 to the City Clerk to go before the City Commission to challenge and formally appeal the decision by the City that the home-based daycare with 2 employees and 12 children does not need to obtain a Business License. At the time of our filing of this appeal, all applicants were required to file their Business License Application for the City’s review, approval and license issuance as a Home-Based, Commercial or Out of City Limits Business. -On October 15, 2021, we received a letter from the Assistant City Attorney indicating that the daycare applied for and received a City of Bozeman Business License and that our “complaint has been resolved and the appeal is moot; therefore, no hearing date before the City Commission will be set.” The Assistant City Attorney’s actions, taken either independently or upon the direction of the City Attorney, canceled our hearing date before the City Commission and denied our right of appeal and to procedural due process as provided in the BMC § 12.02.190. The City engaged, at the direction or guidance of the City Attorney’s Office, in a one-sided communication with the business regarding an issue pending before the City Commission. Thus, they initiated a series of repeated actions and conduct that clearly display favoritism, partiality and bias in handling our appeals and the City’s review and licensing of the business, which was the specific subject of our appeal. It is our belief that the Assistant City Attorney, of her own volition or at the direction of the City Attorney, began taking actions to protect the personal and/or financial interests of the home-based business that was the subject of our pending appeal, and either directly or indirectly, via the City’s Community Development Department, reached out and colluded with the home-based daycare to submit a Business License Application, which was then approved by the City the same day without any further notice or due process to us as the proponents of the pending appeal. As indicated in the letter by Ms. Rischke on November 19 ,2021, the City instructed the subject daycare business to leave the Home-Based business checkbox blank, as the City was working on a new application and enacting a new administrative rule specific to home-based daycares, which first became effective the same day the business submitted and received approval of its Business License Application. Notably, even though we had a filed appeal pending, and this administrative rule became effective on October 13, 2021, the Assistant City Attorney did not provide us with a copy of this new rule until November 19th, and only after our second appeal was filed on October 27th, as further outlined below. Additionally, it is our position that this new administrative rule clearly exceeds the City’s related and limited authority under BMC for operating and enforcing its business licensing requirements, since this rule substantially changes the existing and established scope of the BMC’s home-based business regulations, which by their plain terms apply to home-based daycare businesses. Communications by or at the direction of the City Attorney’s Office, with a private for-profit business, on how to secure a Business License and instructions by the City on how to fill out the application to avoid additional City permits and procedural review required by the BMC for home-based businesses, as well as drafting and supporting the Community Development Department’s enactment of a new administrative rule that allows for special treatment of home-based daycare businesses in the City’s business review and licensing process, all while a pending complaint regarding the same was in process 20 Page 3 with the City and without any notice to the proponents of that pending appeal, clearly meets the City’s definition of Conflict of Interest and results in conduct that plainly violates the City’s Standards of Conduct, including for impartial and fair conduct, as well as for improper government actions. -On October 27, 2021, we submitted our second formal appeal to the City Clerks’ Office to be scheduled before the City Commissioners indicating the subject home-based daycare’s Business License Application was flawed and needed to be submitted and reviewed by the City as a Home-Based Business to be compliant with the BMC; our appeal noted multiple areas in the Business License Application that were not properly completed, and which if completed in accordance with the BMC’s existing requirements for home-based businesses, including daycares, would trigger additional permits and procedural review required prior to the City’s issuance of a business license to a home-based business. We called the City Clerks’ Office to check on scheduling for this matter and our appeal before the City Commission on November 16, 2021 and were told that the Assistant City Attorney was handling this matter, including the scheduling of our appeal and related public hearing before the Commission. Notably, nothing in BMC § 12.02.190 authorizes any involvement of the City Attorney’s Office, beyond defending the City’s decision before the City Commission at the public hearing. During this three-week period that the Assistant City Attorney, acting independently or at the direction of the City Attorney, was holding onto and delaying our appeal, the City was also working on and rolled out a new Business License Application (Revision October), at the direction or with the support of the City Attorney’s Office. -On November 19, 2021, after our inquiry with the Clerk’s Office and a further request on November 17th for clarification on the status our public hearing, we received a letter from Assistant City Attorney Rischke indicating there will be a City Commission hearing on December 14, 2021. The letter informed us that the City is in the process of updating its Business License Application, thus the business was instructed by the City to leave the required selection of either the Home-Based Business or Commercial Business boxes blank. The letter also informed us for the first time of a newly enacted administrative rule that the City had issued on October 13, 2021 under BMC § 12.02.050.A.1—to remove home-based daycares from the existing definition of “Home-Based Business” and create a special new review process applicable to their approval of daycares. This could hardly have been a coincidence. -Additionally, as indicated in this November 17th letter, the City Attorney’s Office will be representing the City and its decision to issue a business license to the subject daycare under its new enacted administrative rule before the City Commission. It is our position that the scheduling of our appeal and requested public hearing under and in accordance with BMC § 12.02.190 was only a ministerial duty of the City Clerk’s Office, and the City Attorney’s Office involvement in and direct handling of the scheduling of this hearing, which was clearly provided for under applicable provisions of the BMC, represents yet another Conflict of Interest and a violation of the City’s Standard of Conduct, specifically the discharge of duties fairly and impartially. It also conflicts with the City’s Declaration of Policy for its Code of Ethics, which as quoted below, specifically requires that for the proper operation of City government, governmental decision be made in the proper channels of the governmental structure. -On December 2, 2021, we submitted a supplement to our October 27th appeal letter to the City Commission (c/o the City Clerks’ Office) to respond to the November 19th letter received from the City Attorney’s Office and outline our position to the Commission regarding the validity of the City’s new administrative rule issued on October 13, 2021, as well as to correct misinformation stated in this letter and the City’s Rationale & Intent for its recently minted administrative rule. 21 Page 4 Applicable Standards of Conduct The City’s Standards of Conduct (BMC § 2.03.490) and Conflict of Interest (BMC § 2.03.520) provisions establish basic required standards and related rules that apply to all City employees and officials, the applicable provisions of which are summarized below. • Act morally and honestly in discharging their responsibilities; • Discharge their duties impartially and fairly; • No official or employee shall improperly use, directly or indirectly, the official or employee's city position to secure personal interest for said official employee, or others. • All officials and employees shall refrain from “improper governmental action”—as this term is defined in the City’s Code of Ethics and further reviewed below. • Not use their position to secure any financial interest or personal interest, improperly influence any other official or employee in the performance of official duties, or act in a private capacity on matters they are directly responsible for BMC. • Not take or influence official action if the official or employee has a financial or personal interest in a transaction or matter with the city. The City’s Code of Ethics defines “improper government action” as including “any action taken by an official or employee during the performance of the officer's or employee's duties, regardless of whether the action is within the scope of the employee's employment or the officer's duties that: violates the [City’s] standards of conduct ... [or standards under MCA § 2-2-101 et seq., the State’s Code of Ethics]. ….” (BMC § 2.03.470.A.8.a.(1) and (2)) As referenced in the Bozeman Employee Handbook and stated in the Declaration of Policy for the City’s Code of Ethics: “The proper operation of City government requires that public officials and employees be independent, impartial, and responsible; that governmental policies and decisions be made in the proper channels of the governmental structure; that public office and employment not be used for personal gain nor be used to harass, intimidate, or retaliate against citizens and other employees and officials. The purpose of this code of ethics is to set forth standards of ethical conduct, to assist public officials and employees in establishing guidelines for their conduct, to foster the development and maintenance of a tradition of responsible, accountable and effective public service, and to prohibit conflict between public duty and private interest.” (BMC § 2.03.460; emphasis added.) Additionally, MCA § 2-2-101 et seq., which is referenced and incorporated in the City’s Code of Ethics, also provides a Code of Ethics and Standards of Conduct applicable to local government employees and public officials. The purpose of this state-level Code of Ethics is “prohibiting conflict between public duty and private interest as required by the constitution of Montana.” (MCA § 2-2-101) Specific to a local government employee and official’s duty to act for and on behalf of the public (and not a specific individual’s or business’s interests), the State’s Code of Ethics, in MCA § 2-2-103, provides that: “The holding of public office or employment is a public trust, created by the confidence that the electorate reposes in the integrity of public officers, legislators, and public employees. A public officer, legislator, or public employee shall carry out the individual’s duties for the benefit of the people of the 22 Page 5 state. … This part sets forth various rules of conduct, the transgression of any of which is a violation of public duty, and various ethical principles, the transgression of any of which must be avoided.” For enforcement of this public trust duty and rules of conduct specific to local government officers and employees, MCA § 2-2-103 refers to enforcement provided in MCA § 2-2-144, which allows local governments to establish an independent panel to review complaints alleging violations by officers or employees of local governments, subject to procedures and rules established by the local government for this panel, which in this case is the City of Bozeman Board of Ethics, operating in accordance with the City’s Code of Ethics, as codified in Chapter 2, Article 3, Division 4 of the BMC. Per MCA § 2-2-144(5)(a), while the Board of Ethics typically refers complaints to the county (or as applicable in Bozeman, city) attorney, if the complaint is filed against the county (or in this case, city) attorney, the board “shall refer the matter to the commissioner of political practices and the complaint must then be processed by the commissioner pursuant to 2-2-136.” Under MCA § 2-2-136, the commissioner of political practices has jurisdiction over complaints referred by a local board or ethics review panel pursuant to 2-2-144. While MCA § 2-2-144(6) allows a complaint against the county or city attorney’s office to be filed directly with the commissioner, in consideration of and respect for the expertise of the Bozeman Board of Ethics with the City’s Code of Ethics, we have elected to file our complaint with the board for its review and our request for its issuance of a formal advisory opinion. Conclusion While an appeal by a concerned citizen that has taken considerable time and financial resources was pending as a matter before the City Commission, the Assistant City Attorney, acting independently or at the direction of the City Attorney, acted in an official capacity to help the daycare business navigate around the then-current applicable City laws. The Assistant City Attorney then provided legal advice, support and/or direction to the Community Development Director to enact a new administrative rule directly aimed at sidelining our appeal and procedural due process review rights under BMC. This was the second time that the Assistant City Attorney, acting independently or at the direction of the City Attorney, took direct action to support the daycare’s private interest and improperly influence the outcome of an official action pending before the City Commission. This is a Conflict of Interest as defined by the Code of Ethics. Based on the actions and decisions outlined above and related to our appeals of applicable business licensing requirements for home-based daycares, it is our position and belief that the Assistant City Attorney, acting independently or at the direction of the City Attorney, made multiple decisions, including directing other City departments, including the Community Development Department and City Clerk’s Office, in her official capacity as an employee of the City Attorney’s Office, to sideline, prejudice or delay a matter being actively appealed to the City Commission for review, in order to secure a favorable outcome for a specific home-based daycare’s private and/or financial interests. As such, she and the City Attorney did not act or discharge their public duties impartially or fairly, as required under the City’s Standard of Conduct. These improprieties need to be acknowledged and addressed. We have submitted multiple public records requests to the City including one on November 17th requesting communication between the City and the subject business, as well as other inter- departmental City communication related to the scheduling of our appeals before the City Commission 23 Page 6 and the business licensing requirements for daycares, which we believe will provide further support to our position and ethics complaint. City employees and officials undertake annual ethics training, and the training involves a series of specific examples where one must decide if the actions constitute a violation of the Code of Ethics. If the situation outlined above was used as an example, the answer would be yes, the actions and facts constitute a violation of the City’s Code of Ethics, as well as the State’s Code of Ethics. As the City Attorney and his office staff are involved in the subject matter of this complaint, it is recommended that if the Board of Ethics needs a legal opinion to form its opinion, it retain outside independent legal counsel or refer this matter to the State’s Commissioner of Political Practices, as set forth in the State’s Code of Ethics. Thank you in advance for your impartial consideration of the issues discussed in this letter. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 Enclosures: 8.31.21 – Complaint Letter to City Community Development Director (Business License Violation) 9.21.21 – Letter to Ms. Guercio from City (re: City Decision to not require business license for daycare) 9.30.21 – Reply Letter to City Community Development Director (re: Intent to Appeal re: Business License Decision) 10.6.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of City Decision re: License) (with enclosures) 10.15.21 – Letter to Ms. Guercio from City Attorney’s Office (enclosing Business License issued to daycare) 10.27.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of Business License Application) 11.19.21 – Letter to Mr. Zyvoloski from City Attorney’s Office (enclosing Administrative Rule 2021-01) 12.2.21 – Supplemental Letter to City Commissioners (c/o City Clerk) (re: appeal and response to 11.19.21 Letter) 10.13.21 – Bibs to Books Business License Application 10.13.21 – New Administrative Rule 2021-01 11.17.2021 – Bozeman Public Records Request 11.18.2021 – Bozeman Public Records Request 11.24.2021 – Bozeman Public Records Request 24 25 Lara D. Guercio Crowley Fleck 1915 South 19th Avenue Bozeman, MT 59718 Re: Group Day Care (2107 Highland Court) Ms. Guercio: I have received your letter of formal complaint on behalf of your client regarding the group day care at 2107 Highland Court. The City also received an email from Mr. Zyvoloski on August 13, 2021. This letter responds to both communications. After consulting with the City Attorney and in accordance with our previous advice, the City of Bozeman disagrees that a business license is required to run an otherwise compliant group day care in a residential neighborhood within the City. Therefore, no violation of the Bozeman Municipal Code (BMC) has occurred. First, please be advised that group day cares are authorized in the State of Montana in any residential zone. See Mont. Code Ann. § 76-2-412. Additionally, the BMC addresses and regulates various kinds of daycare facilities in both residential and commercial zoning districts. The property at 2107 Highland Court is in a residential area zoned R-1. A group day care is a principal use in the R-1 zoning district, meaning it is fully permissible under City code. See 38.310.030, BMC. The City understands that not every house or neighborhood will be a good fit for a day care facility, which is in part why the code requires day care facilities to be either licensed or registered with Montana’s Department of Public Health and Human Services (DPHHS). Under DPHHS regulations, group day care facilities must provide proof of liability and fire insurance, minimum amounts of indoor and outdoor space for each child, and specific means of ingress and egress, among many other things. Next, the City generally requires a business to be licensed, unless the business is exempt pursuant to state law or by other provisions of the code. See 12.01.010.A.1, BMC. The State of Montana is the regulatory and licensing authority for many professions, including daycare businesses. The City does not require a business license for the practice of professions regulated by state law. Therefore, the City does not require any licensure of day care businesses beyond what is required by state law. DPHHS Registration requirements for family and group daycares share many similarities with licensure requirements for larger day care centers, including penalties for violations of state law. See Mont. Code Ann. § 52-2-741. 26 Page 2 of 2 Finally, we look forward to the continued involvement of all citizens on updates and edits to the municipal code. Citizens are notified of proposed changes to the municipal code in multiple ways: through the City’s website on City Commission agendas at www.bozeman.net/government/city-commission; by publication in the Bozeman Daily Chronicle legal ads; and by posting in City Hall. Unfortunately, due to the variety of issues and volume of interest on any given topic, it is not possible for the City to provide direct notice to you if the City proposes any changes in the future to municipal codes regarding day care facilities or business license requirements. Sincerely, Marty Matsen Director of Community Development c: Jeff Mihelich, City Manager 27 28 29 30 31 32 33 34 35 36 37 38 39 Greg Sullivan, City Attorney Bekki McLean, Chief Prosecutor Tim Cooper, Assistant City Attorney Jennifer Guittari, Assistant City Attorney Kelley Rischke, Assistant City Attorney Anna Saverud, Assistant City Attorney Kyla Murray, Prosecutor Edward Hirsch, Prosecutor Samantha Niesen, Prosecutor A 121 NORTH ROUSE AVENUE P.O. BOX 1230 BOZEMAN, MT 59771-1230 P 406-582-2309 F 406-582-2302 WWW.BOZEMAN.NET F TDD: 406-582-2301 THE MOST LIVABLE PLACE October 15, 2021 Lara D. Guercio 1915 South 19th Ave. Bozeman, MT 59718 RE: Group Day Care (2107 Highland Court) Dear Ms. Guercio: This letter responds to your response letter to Mr. Matsen dated September 30, 2021 and your letter appealing Mr. Matsen’s decision dated October 6, 2021. The daycare, Bibs to Books Playhouse, recently applied for and received a City of Bozeman Business License. I have provided a copy for your convenience. Your complaint has been resolved and the appeal is moot; therefore, no hearing date before the City Commission will be set. For clarification, Mr. Matsen’s reference to the daycare being “otherwise compliant” was with respect to zoning codes, which require registration with DPHHS. Bibs to Books Playhouse is compliant with DPHHS, properly registered with the state, and is in compliance with City zoning codes. The building code violation and the Stop Work Order issued in relation to the installation of egress windows at the day care was due to a mistake on the City’s part and was quickly remedied. An application for a building permit was submitted for the work, but City personnel mistakenly believed that the work was for a home on Highland Boulevard, not Highland Court. Highland Boulevard is outside city limits and the applicant was advised that a City of Bozeman building permit would not be required. As soon as the mistake was discovered, the applicant obtained a building permit. Since the day care business is apparently a separate entity from the auto detail shop and you have provided no evidence that Ms. Limpus has any responsibility for the auto detail shop, your assertions with regard to an auto detail shop operating without a license are irrelevant to the complaint pertaining to the day care. Fortunately, the day care now holds a business license and no further resources will be needlessly expended by either party. Sincerely, /s/ Kelley L. Rischke Kelley Rischke Assistant City Attorney 40 BOZEMANMTBUSINESS LICENSENO. 21-00069197$ 0.00GRANTED: October 13, 2021BEGINS: October 13, 2021EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMAN MT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER^Bp.^^^•••;..••^;^7--••ys/•^°/*0•Vy^7.v^V<?;••..1883..••A^^..••••..0^^'co.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-226041 BOZEMANCommunity DevelopmentMTOctober 13, 2021BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715Dear Business Owner or Manager:Please find enclosed your Bozeman City Business License.Please sign this document immediately. By law it must be posted in apublic place.Thank you for complying with Bozeman Municipal Code 12.02.130.If you have any questions please feel free to call [406} 582-2260.Regards,Department of Community Development® 20 East Olive Street ] ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 ; © 406-582-2263 I www.bozeman.netTDD: 406-582-2301THE MOST LIVABLE PLACE.42 October 27, 2021 City of Bozeman City Commissioners c/o City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: Administrative Appeal of Business License No. 21-69197 for a Home-Based Daycare Dear City Commissioners: I have lived in Bozeman for 20 years and at my current address for 10 years. I’m a new father who is aware of the daycare shortage in Bozeman, and I believe that there is a proper place in our community for home-based daycares. I’m asking the City Commission to take an unbiased review of the City staff’s actions regarding the issuance of a business license to a home-based daycare that is clearly deficient and not compliant with the Bozeman Municipal Code (BMC or Code). I am writing as the Appellant, residing with my family at 2108 Highland Ct., to appeal, in accordance with and pursuant to BMC § 12.02.190, the City of Bozeman's (City) administrative decision to issue on October 13, 2021, a business license (No. 21-69197) to Bibs to Books Playhouse (Applicant) for a daycare/preschool business located at 2107 Highland Ct. The evidence below and enclosed outlines how the City’s administrative staff incorrectly issued a business license in violation of the terms of the BMC. Per BMC, a principal purpose of the City’s Code is to establish procedures (including for any permitted departures, deviations, or variances therefrom) for providing and preserving equitable implementation of the law to “prevent special treatment to particular parties ….” BMC § 38.250.010 (Purpose). The City recently determined that the subject home-based group daycare business is required to obtain a business license. The Applicant’s business license application and the City’s issued business license are enclosed for your review and reference. BMC § Sec. 38.200.100 (Permit issuance; conformity with regulations required) states that “No permit or license of any type will be issued unless the plans and application are in conformance with the regulations contained within this chapter ….” The following items were not completed on the Applicant’s submitted business licensing application, and are highlighted for your reference on the enclosed business license application (No. 21-69197): • Zoning District was left blank • A selection of Home-Based Location vs. Commercial Location box was not selected • Selection for Construction Changes, Electrical Changes, …etc. is not completed • The indication of No Charge was indicated and noted “per Kelley” This application was approved by the Planning Division on the same day it was submitted to the City, but does not conform to the City’s regulations that govern the issuance of and compliance for business 43 licenses, and further does not comply with the standard conditions required for permitted home-based businesses, as set forth in BMC § 38.360.150. Do other businesses in the City get this sort of favoritism—to skip required selections, disregard applicable regulations, and thus bypass the City’s required procedural reviews and further consideration of the additional permits that they may trigger? To preserve public trust, this business license application should have been reviewed with a standard of conduct that maintains fairness and follows the same impartial and transparent procedural review that all other businesses in the City are required to comply by. The City defines a “home-based business” in BMC § Sec.38.700.090 as: “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” A for-profit home-based group daycare business that employs 2 people and cares for 12 children in a single-family residence meets this definition. The City has recognized that home-based businesses can have an impact on residential neighborhoods and dedicated an entire section in the BMC to regulate home-based business. The Code includes a Special Use Permit process that requires home-based businesses to apply for such a permit, with necessary conditions for any allowed special use, if it will have an impact that is greater in scope or more intrusive than the standard permitted home-based business. BMC § 38.360.150.C. The Appellant is asking that the City Commission reverse the City’s decision to issue Business License No. 21-69197 and require that the Applicant cease operating until it can obtain a business license that is compliant with the BMC’s applicable requirements, including the Applicant signing the City’s Home- Based Business Acknowledgement Form and issuance by the City of a Special Use Permit, as necessary, prior to being licensed as a home-based business. In sum, we are requesting that the City Commission require the Applicant’s license application be reviewed by the City in an equitable manner that is consistent with the City’s business licensing regulations, which all other non-exempt businesses are required to comply with. We are confident that the City Commission will recognize that its administrative staff’s decisions and actions related to the City’s issuance of the subject license created a clear violation of the City’s Code and by recognizing this fact, issue a ruling that requires that the Applicant become compliant with the BMC and obtain a properly issued home-based business license before it operates within the City. Per the BMC’s appeal procedures, please schedule a public hearing before the City Commission to hear and issue a final decision within 45 days of this appeal. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 44 cc: Jeff Mihelich, City Manager (USPS and email); Chuck Winn, Assistant City Manager (email); Martin Matsen, Director of Community Development (email); Greg Sullivan, City Attorney (email); Kelley Rischke, Assistant City Attorney (email); Lara Guercio, Appellant Attorney (email) Enclosures: Map Description of the Applicant Property, Business License Application No. 21-69197, Business License No. 21-069197, Bozeman Planning: Home-Based Business Acknowledgement Form 45 Source: Esri, Maxar, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community, Esri, HERE, Garmin, (c) OpenStreetMap contributors, and the GIS user community Business Owner: Bibs to Books Playhouse Property Owner: White Grass LLC THOMPSON ADD 3 AMND, S18, T02 S, R06 E, BLOCK 3, Lot 7, PLAT G-10 Date: 10/25/2021 2107 Highland Ct. 0 30 6015 Feet Bozeman, MT ZonedR-1 H ig h l a n d Ct. 46 BOZEMANMTCity of BozemanSTIFF BUILDING20 East Olive Street, Bozeman, Montana 59715Account # ^.1 - (tf>^ fc)(406) 582-2260NAICS # (^^?L(^IDNEW BUSINESS Q CHANGE OF BUSINESS LOCATION (12.02.070) |~] TRANSFER OF OWNERSHIP (12.02.081["") RENEWAL C") BUSINESS NAME CHANGE |""| MEDICAL MARIJUANA Except Medlcal Marijuana)BUSINESS NAME \^~^'bS -\0 ^^OoVS. "Y\ CK^ h&V.^-^-^, L \ •'PHYSICAL BUSINESS ADDRESS S)\ (}r\ \^ \ CA^J Q AC\ COM r*~ •\ B^2Tj-YU n fr\ T S<? ?/ ^5MAILING ADDRESS So.\Trxf^ 0^. ^^>G>\1 ~cs-CITYSTZIPSTREET ^ 1^-l-CiT(^~ ^--ST^ — ZIPBUS. TELEPHONE s^\lsl^^S? ^ - "<?)r1 S> EMAILADDRESS \^Xx-^CT\-(\\<^7 \^S.IC\ .C(\\^C\ ZONING DISTRICTOWNERFULL LEGAL NAMEPRIMARY TELEPHONE v^(s>l<?-c;' ^ \~<:S~a^rl^_ SECONDARY PHONE.'^^c^/-\Go.ro< ^C^r^-V.YxC FY^UL^^ I..^r\^isCO- OWNER OR MAflAGERFULL LEGAL NAME.f^AGER ti ^->. x „ \ , _ "^>S>w^^^ \ ^ C_v\r ^ S A-i' i^v^ V-t Of\ 0^ S \^c^, \ e ^PRIMARY TELEPHONEMOL&-C?'2>V <-1 •2><-j ^-1 SECONDARY PHONE.^+us pfys'Qse'.ii!-\Q pfVI,"\^o^</ra^^ /-T^^-e S cJ<xooT|_) HOME^ASED LOCATION - $50.00 ^ OUT OF CITC LIMITS LOCATION - $50.00[""J COMMERCIAL LOCATION - $50.00 (Copy of Driver's License Required with Application)What is current use of property:following chsngss?Construction ChangesElectrical ChangesMechanical ChangesPlumbing ChangesNew or Relocated SignsIF COMMERCIALEmergency Contact:NOaaaDaYESaaaaaIF YES, YOU WILL NEEDD Building Permit|""I Electrical PermitO Mechanical Permitj~'j Plumbing Permit|"~| Sign PermitPhone:'PLEASE COMPLETEFire SuppressionSecurity AlarmMonitored By:NOYESaa# of Full Time Employees# of Part Time EmployeesEmail:3:Other Emergency Information:This application is made subject to the terms of the Bozeman Municipal Code. I understand the license issued hereunder is NOT TRANSFERABLEexcept as provided in Chapter 12.02 BMC, and that the inf^nation I have supplied is correct to the best of my knowledge.^m^^^<^aAOJC.->^..Lm|O^A /^^^...^_^^ Date _2&//^/G<>/-FOR OFFICE USE ONLYZoningMVROVB1 REJECTEDBuildingEngineeringFirePoltoePlanning ^JOccupancyConsfructton TypeDATECOMHEfTS:iojt<yu^/c.sft^- Make Checks Payable to: City ofBozeman -47 BOZEMANMTBUSINESS LICENSENO. 21-00069197$ 0.00GRANTED: October 13, 2021BEGINS: October 13, 2021EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMAN MT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER^Bp.^^^•••;..••^;^7--••ys/•^°/*0•Vy^7.v^V<?;••..1883..••A^^..••••..0^^'co.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-226048 Home-Base Business Acknowledgement Form City of Bozeman, Montana Finance Office PO Box 1230 Bozeman, MT 59715 406.582.2327 To the Community Development Director: I, the undersigned applicant for a Home-Based Business, do hereby certify that I have read and understand the requirements and conditions of Chapter 38.360.140 of the City of Bozeman Zoning Ordinance and agree to abide by all said requirements which regulate and limit the types and intensity of home-based businesses. ________________________________________________________ _________________________ Applicant Date ________________________________________________________ _________________________ Applicant Signature Date Business Name 49 BOZEMANCommunity DevelopmentMTOctober 13, 2021BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715Dear Business Owner or Manager:Please find enclosed your Bozeman City Business License.Please sign this document immediately. By law it must be posted in apublic place.Thank you for complying with Bozeman Municipal Code 12.02.130.If you have any questions please feel free to call [406} 582-2260.Regards,Department of Community Development® 20 East Olive Street ] ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 ; © 406-582-2263 I www.bozeman.netTDD: 406-582-2301THE MOST LIVABLE PLACE.50 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, ProsecutorNovember 19,2021Daniel Zyvoloski2108 Highland CtBozeman,MT59715SENT VIA: First Class Mail and Email to dan@kroenkeranches.comDear Mr. Zyvoloski,I received your letter appealing business license number 21-69197 issued to Bibs to BooksPlayhouse on October 13, 2021. I write to provide some additional information, correct someinaccuracies in your letter, and to inform you that a hearing, pursuant to Bozeman MunicipalCode 12.02.190, will be held on this matter before the Bozeman City Commission on December14, 20211. City Commission meetings begin at 6:00. The meeting will be held via WebEx. TheCity Clerk will make arrangements with you closer to the date of the hearing to ensure you havethe ability to give a presentation before the City Commission through WebEx. The appealprocedure will be as follows: City staff presentation- 10 minutes, followed by questions fromthe Commission; Appellant presentation -10 minutes, followed by questions from theCommission; public comment; Commission discussion and vote.First, your letter points out ministerial errors in Bibs to Books Playhouse's application for abusiness license, including failure to include the zoning district and to check some boxes on theapplication. It is not uncommon for applicants to inadvertently omit information on applicationsor uncommon for the City to work with applicants to obtain the omitted information. The Citycontacted the applicant and corrected the deficiencies you identified regarding applicant's failureto check boxes related to construction, electrical, mechanical, or plumbing changes and signs.As you know from our previous correspondence, the zoning district is R-l.Second, you complain that applicant failed to select home-based location, commercial location,or out of city limits location on her application. You incorrectly assume that Bibs to BooksPlayhouse is a home-based business as defined and regulated in the Bozeman Municipal Code.The City carefully examined requirements in code for home-based businesses and determinedthat group and family daycare businesses are sufficiently different from the types of businessesthat regulations for home-based businesses are meant to address. Therefore, the City determinedthat daycare businesses should have a separate and unique category of business license. The Citywrote an administrative rule to create the new category of business licenses for day carebusinesses, pursuant to its authority in section 12.02.050.A.1, BMC. I have enclosed a copy of1 A voicemail from you to Mike Maas, City Clerk, on November 15,2021 asserts that the appeal must be heldwithin 45 days. No such requirement is found in Chapter 12 of the Bozeman Municipal Code.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230@ 406-582-2309 (F) 406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE51 M T Greg Sullivan, City AttorneyBekki McLean, Chief ProsecutorCity Attorney's Office Tim Cooper, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutorthe administrative rule for your convenience. The City is in the process of updating its businesslicense application form, which is why the applicant was instructed to leave blank thecheckboxes for home-based, commercial, or out of City limits location.In light of your assertion that favoritism is at issue here, please note the administrative rulewaives business license application fees for all day care businesses. The City also waivesbusiness license application fees for other types of businesses, such as plumbers and electricians.Business license fees must be based upon the cost of administering the business license program.Because the City determined that inspections should generally not be required for day carebusinesses due to the significant regulatory requirements imposed by the Montana Department ofPublic Health and Human Services, the cost to administer this category of business licenses isnominal. Therefore, the City determined that fees for day care businesses license applicationsshould be waived and included such a provision in the administrative rule.In an attempt to-address your concerns, the City extensively reviewed and carefully Graftedregulations that responded to your assertion that your neighbor must obtain a business license,while instituting reasonable regulations for all day care businesses. The regulatory parametersare reasonable, particularly in light of the shortage of day care providers and the negative impactthis shortage has on our local economy. Contrary to your assertion that the City showedfavoritism to this licensee, the City crafted regulations applicable to all day care providersequally.Throughout the course of your correspondence with the City, Bibs to Books Playhouse has beenin compliance with state regulatory requirements for day care operations governed by theDepartment of Health and Human Services. The business also complies with City zoningregulations, which allow this type of day care operation in all residential zoning districts. Thisbusiness is also currently compliant with the business licensing requirements of the BozemanMunicipal Code.After thorough consideration of your argument that day care businesses should be required tohave a business license, the City ultimately agreed. The business licensewas properly issuedand the City has determined that Bibs to Books Playhouse is not violating the BozemanMunicipal Code. We will be prepared to present the same during the appeal hearing before theCity Commission on December 14, 2021.Sincerely,^^-//&^^Kelley RischkeAssistant City Attorney121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230406-582-2309406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE52 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Copper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutorec: Lara Guerico, attorney for Mr. Zyvoloski (via email to Lara Guerciolguercio@crowleyfleck.com and 1st class mail);JeffMihelich, City Manager;Chuck Winn, Assistant City Manager;Greg Sullivan, City Attorney;Marty Matsen, Director of Community Developmentenc.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230P) 406-582-2309406-582-2302WWW.BOZEMAN.NET-DD: 406-582-2301THE MOST LIVABLE PLACE53 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman [City) zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health ofBozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers.Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street \ @P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | © 406-582-2263 j www.bozeman.netTRD- 406-589-9301THF MOST IIVARI F Pl AFF54 Page 2 of 2*fDefinitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code (BMC),the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection^] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.^^^latsenCommunity Development Director55 1 December 2, 2021 City of Bozeman City Commissioners c/o City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: Supplement to Administrative Appeal of Business License No. 21-69197 for a Home-Based Daycare Dear City Commissioners: Thank you for providing a hearing date and the opportunity for public review and consideration of this appeal on December 14, 2021. We look forward to presenting our case as to why the subject home- based for-profit daycare business should be properly licensed as a Home-Based Business by the City, in accordance with existing and applicable provisions of the BMC. This letter supplements our administrative appeal filed on October 27, 2021 and responds to the November 19, 2021 letter by the City Attorney’s Office (the “Nov. 19th City Letter”) regarding the City’s position on its issuance of the subject business license, enclosed for your reference. For background and context, I would first like to outline earlier correspondence with the City (enclosed for reference), including specific actions and formal decisions made by the City over the past several months regarding the issuance of a business license to the subject home-based daycare business, which relocated within the City’s limits to a location across from my family residence earlier this year. -On August 31, 2021, my attorney submitted a letter to the City of Bozeman’s Community Development Director indicating that this home-based daycare is violating the Bozeman Municipal Code (“BMC” or “Code”), as it had not applied for or obtained a City Business License, as required under the existing plain terms of the BMC’s business licensing provisions. -On September 21, 2021, after indicating that they were waiting for direction from the City Attorney’s Office, we received a formal letter from the Community Development Director stating “the City does not require any licensure of day care businesses beyond what is required by state law.” -On September 30, 2021, my attorney submitted a letter informing the City that we were planning to appeal the Community Development Director’s decision to the City Commission that the home-based daycare does not need to obtain a Business License. -On October 6, 2021, we filed a formal appeal per BMC § 12.02.190 with the City Clerk to go before the City Commission to challenge and appeal the decision by the City that a home-based daycare with two employees and 12 children does not need to obtain a Business License. At the time of our filing of this appeal, all Business License applicants were required to file their Business License Application for the City’s review, approval and license issuance as a Home-Based, Commercial or Out of City Limits Business. -On October 15, 2021, we received a letter from the Assistant City Attorney indicating that the daycare applied for and received a City Business License and that our “complaint has been resolved and the appeal is moot; therefore, no hearing date before the City Commission will be set.” The only enclosure to the City’s October 15th letter was a copy of the Business License issued by the City to the daycare on 56 2 October 13th, along with the City’s transmittal letter of this license to the business owner. The City’s rationale or justification for issuing the license was not provided as part of the October 15th letter. -Based on our review of the daycare’s Business License Application, which we requested and received from the Community Development Department, this application was incomplete, as it lacked required identification as to whether it was operating as “Home-Based”, “Commercial” or “Out of City Limits”. This designation is important, as it triggers applicable existing requirements, procedural review and potentially additional permits required under the BMC. Other deficiencies of this Business License Application and the City’s improper same-day issuance of a Business License to the daycare are further detailed in my October 27th appeal letter, which is the subject of the currently pending appeal scheduled for review by the Commission on December 14, 2021. -As later indicated in the Nov. 19th City Letter sent in response to my October 27th appeal letter, the City engaged with the Home-Based Business and instructed the subject business to leave the Home- Based Business checkbox blank, as the City was working on a new application and enacting a new rule specific to home-based daycares (Administrative Rule 2021-01), which first became effective the same day this business submitted and received approval of its Business License Application. Notably, even though we had a filed appeal pending, and this rule became effective on October 13, 2021. The City Attorney’s Office did not provide us with a copy of this new rule until November 19th, and only after the second appeal was filed on October 27th. Administrative Rule 2021-01 exceeds the City’s scope of authority per BMC § 12.02.050.A.1 (Administrative Duties) for creating “reasonable rules and regulations necessary to the operation and enforcement of this chapter [the BMC’s business licensing provisions].” This new rule goes far beyond the City’s limited authority to create administrative or ministerial rules and regulations required for the City to operate and enforce of the Code’s existing business license provisions, since the rule substantially changes the existing scope of the BMC’s Home-Based Business (“HBB”) provisions. By its definition in the Code (as excerpted below), a “group daycare home” falls squarely within the existing definition of HBB. As such, under the plain meaning of the BMC’s existing terms, the scope of the HBB provisions is already defined to include group daycare homes. There is no ambiguity or room for the City’s administrative interpretation that is necessary or required for its operation or enforcement of the City’s duly enacted business licensing chapter. Administrative Rule 2021-01 represents a substantial change to the Code and requires a formal amendment to the BMC, which cannot simply be made administratively by the City. The creation of this administrative rule behind closed doors creates a precedent that all City departments can create new rules and regulations that the community doesn’t even knows exists, as they are not subject to standard public notice, review and comment requirements or review and approval by the City Commission prior to the City’s internal enactment of an administrative rule. As defined in the BMC, “group daycare home” falls within the clear and plain meaning of “home-based business” as these two terms are already defined in the BMC. Specifically, “Day care home, group” is defined in BMC § 38.700.050 as a “private residence in which supplemental care is provided ….” As such, by its existing definition, a group day care home is primarily residential and home-based. There is no exception for a group day care home from the BMC’s definition of “home-based business” outlined in 57 3 BMC § Sec.38.700.0901 —so these home-based daycares must be reviewed under the Code’s existing provisions and standards applicable to all Home-Based Businesses. BMC § 12.02.050.A.1, which per the Nov. 19th City Letter provides the alleged basis for the City’s recent—but under the plain terms and scope of the existing applicable BMC provisions, unauthorized— enactment of Administrative Rule 2021-01, and further provides, “All rules are subject to commission review and modification.” We request the Commission invalidate this unauthorized administrative rule and invalidate the subject business license, which the City improperly issued based on this rule. We thank the City for concluding that this home-based daycare does require a Business License. We are currently in the process of obtaining information via the City’s public request process to obtain other Business Licenses that were issued to home-based daycares, including a home-based daycare operating in the Harvest Creek Subdivision with a Business License (but against HOA covenants) as recently as this year. However, we remain perplexed as to why the City was debating and needlessly expended City resources on this issue in the first place, especially after the Community Development Director stated that “the City does not require any licensure of day care businesses beyond what is required by state law” in his September 21, 2021 letter. Further, contrary to the factually incorrect statement in the its Rational & Intent for Administrative Rule 2021-01 that, “Historically, the City has not required day care businesses of any type to obtain a City business license to operate within City limits ….”—we note that the subject home-based daycare, Bibs to Books Playhouse, historically held a Business License issued by the City between 2001 and renewed it until 2005 (Business License # 56722) when it let this prior license lapse, as indicated by the City’s own publicly available records. The subject daycare then conducted business within City limits, but without a license, in violation of the BMC for 15+ years. The Administrative Rule 2021-01 also incorrectly states in its Rational & Intent that the City’s standard for determining whether a business located in City limits is exempted from local licensing requirements includes whether “the business is regulated by the State of Montana.” We will not fully restate our legal position here, which was previously outlined in detail in our earlier October 6th appeal letter. In short, the definition for “business” in BMC § 12.01.010 requires businesses to obtain a local Business License, unless specifically “exempted by state law or this chapter.” Our October 6th appeal letter identifies examples for medical marijuana businesses, plumbers, electricians, which the State of Montana also regulates along with daycares, but for whom the City requires local licensing. We further note that this earlier appeal was quickly dismissed as “moot” in the October 15th letter from the City Attorney’s Office, due to the City’s issuance on October 13th of a license to the subject daycare. As such, our first appeal filed on October 6th and requested hearing by the City Commission was conveniently sidelined. Additionally, we must point out that the statement in the Nov. 19th City Letter that, “Throughout the course of your correspondence with the City, Bibs to Books Playhouse has been in compliance with state regulatory requirements for daycare operations ….”, is factually incorrect and misleading. Focusing only on the Department of Health and Human Services’ (“DPHHS”) inspection and renewal reports filed and publicly available from DPHHS after the daycare relocated from its prior location within the City’s limits 1 As quoted in my October 27th appeal letter, the City defines a “home-based business” as, “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” A for-profit, home-based group daycare business that employs 2 people and cares for 12 children (and publicly stated they plan to increase their capacity to 15) in a single-family private residence clearly meets this definition. 58 4 to 2107 Highland Court in the spring of 2021, we note significant deficiencies identified in DPHHS’s inspection reports . They include fire safety, building code, and caregiver health immunization issues., Further, we note that while our first formal complaint to the City regarding the subject daycare’s lack of a required business license was filed on August 31, 2021, we initiated informal, written correspondence with the City’s Code Enforcement Officer and Community Development Director regarding this matter on July 21, 2021. As such, the above noted DPHHS compliance issues arose during our correspondence with the City, which has extended over the past several months. We recognize that the City has an interest to support daycares, but as previously stated in our earlier correspondence, no new daycare opportunities were created by Bibs to Books Playhouse. This existing business simply moved locations, within the City limits, to opportunistically to take advantage of a favorable leasing arrangement provided by an absentee and out-of-state homeowner. If Bibs to Books Playhouse had remained properly licensed with the City after 2005, the City would have been notified of this fact, per BMC § 12.02.070 – Change of location. Based on the City’s actions and conduct to influence official decisions while appeals are pending before the City Commission, including those outlined above, a Code of Ethics complaint alleging improper government actions, as well as violations of the Standards of Conduct and Conflict of Interest requirements in the City and State Codes of Ethics laws will be filed. The formal complaint will be filed with the City Clerk, for review by the City’s Board of Ethics for a formal opinion. As the City Attorney’s Office is involved with the subject complaint, it will be recommended that the Board retain independent counsel or refer this case to the Commissioner of Politic Practices, as set forth in the State’s Code of Ethics. City officials, including the Commission, and City employees are all subject to the same ethics’ laws. At the December 14th hearing, the City Commission will also have an opportunity to recognize our appeal and remedy what will be presented to the Board of Ethics as alleged improper actions and conduct by the City. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 cc: Jeff Mihelich, City Manager (USPS and email); Chuck Winn, Assistant City Manager (email); Martin Matsen, Director of Community Development (email); Greg Sullivan, City Attorney (email); Kelley Rischke, Assistant City Attorney (email); Lara Guercio, Appellant Attorney (email) Enclosures: 8.31.21 – Complaint Letter to City Community Development Director (Business License Violation) 9.21.21 – Letter to Ms. Guercio from City (re: City Decision to not require business license for daycare) 9.30.21 – Reply Letter to City Community Development Director (re: Intent to Appeal re: Business License Decision) 10.6.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of City Decision re: License) (with enclosures) 10.15.21 – Letter to Ms. Guercio from City Attorney’s Office (enclosing Business License issued to daycare) 11.19.21 – Letter to Mr. Zyvoloski from City Attorney’s Office (enclosing Administrative Rule 2021-01 59 BOZEMANMTCity of BozemanSTIFF BUILDING20 East Olive Street, Bozeman, Montana 59715Account # ^.1 - (tf>^ fc)(406) 582-2260NAICS # (^^?L(^IDNEW BUSINESS Q CHANGE OF BUSINESS LOCATION (12.02.070) |~] TRANSFER OF OWNERSHIP (12.02.081["") RENEWAL C") BUSINESS NAME CHANGE |""| MEDICAL MARIJUANA Except Medlcal Marijuana)BUSINESS NAME \^~^'bS -\0 ^^OoVS. "Y\ CK^ h&V.^-^-^, L \ •'PHYSICAL BUSINESS ADDRESS S)\ (}r\ \^ \ CA^J Q AC\ COM r*~ •\ B^2Tj-YU n fr\ T S<? ?/ ^5MAILING ADDRESS So.\Trxf^ 0^. ^^>G>\1 ~cs-CITYSTZIPSTREET ^ 1^-l-CiT(^~ ^--ST^ — ZIPBUS. TELEPHONE s^\lsl^^S? ^ - "<?)r1 S> EMAILADDRESS \^Xx-^CT\-(\\<^7 \^S.IC\ .C(\\^C\ ZONING DISTRICTOWNERFULL LEGAL NAMEPRIMARY TELEPHONE v^(s>l<?-c;' ^ \~<:S~a^rl^_ SECONDARY PHONE.'^^c^/-\Go.ro< ^C^r^-V.YxC FY^UL^^ I..^r\^isCO- OWNER OR MAflAGERFULL LEGAL NAME.f^AGER ti ^->. x „ \ , _ "^>S>w^^^ \ ^ C_v\r ^ S A-i' i^v^ V-t Of\ 0^ S \^c^, \ e ^PRIMARY TELEPHONEMOL&-C?'2>V <-1 •2><-j ^-1 SECONDARY PHONE.^+us pfys'Qse'.ii!-\Q pfVI,"\^o^</ra^^ /-T^^-e S cJ<xooT|_) HOME^ASED LOCATION - $50.00 ^ OUT OF CITC LIMITS LOCATION - $50.00[""J COMMERCIAL LOCATION - $50.00 (Copy of Driver's License Required with Application)What is current use of property:following chsngss?Construction ChangesElectrical ChangesMechanical ChangesPlumbing ChangesNew or Relocated SignsIF COMMERCIALEmergency Contact:NOaaaDaYESaaaaaIF YES, YOU WILL NEEDD Building Permit|""I Electrical PermitO Mechanical Permitj~'j Plumbing Permit|"~| Sign PermitPhone:'PLEASE COMPLETEFire SuppressionSecurity AlarmMonitored By:NOYESaa# of Full Time Employees# of Part Time EmployeesEmail:3:Other Emergency Information:This application is made subject to the terms of the Bozeman Municipal Code. I understand the license issued hereunder is NOT TRANSFERABLEexcept as provided in Chapter 12.02 BMC, and that the inf^nation I have supplied is correct to the best of my knowledge.^m^^^<^aAOJC.->^..Lm|O^A /^^^...^_^^ Date _2&//^/G<>/-FOR OFFICE USE ONLYZoningMVROVB1 REJECTEDBuildingEngineeringFirePoltoePlanning ^JOccupancyConsfructton TypeDATECOMHEfTS:iojt<yu^/c.sft^- Make Checks Payable to: City ofBozeman -60 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman [City) zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health ofBozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers.Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street \ @P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | © 406-582-2263 j www.bozeman.netTRD- 406-589-9301THF MOST IIVARI F Pl AFF61 Page 2 of 2*fDefinitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code (BMC),the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection^] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.^^^latsenCommunity Development Director62 From: Daniel Zyvoloski Sent: Wednesday, November 17, 2021 9:42 AM To: Lara Guercio Subject: FW: Records Request Received This message was received from an external email account. Please use cauon when opening messages, aachments or external links from unknown senders. From: webadmin@bozeman.net <webadmin@bozeman.net> Sent: Wednesday, November 17, 2021 9:37 AM To: danzyvo@hotmail.com Subject: Records Request Received A new entry to a form/survey has been submied. Form Name:Records Request Date & Time:11/17/2021 9:37 AM Response #:711 Submier ID:45938 IP address:2600:6c67:5000:64c5:6ceb:251d:a823:9ecc Time to complete:3 min. , 2 sec. Survey Details Page 1 Records Request Form We would be happy to help you with a records request related to city administraon or city governance. NOTICE: No new document will be created to respond to an informaon request. See Sect. 2-6- 1006(4), MCA. Applicable informaon may be made available for requester to compile his/her own data subject to law, including the legal restricons regarding creaon of mailing lists from public records. See See Sect. 2-6-1017, MCA. This form is NOT intended for requesng informaon regarding court cases, marriage licenses, divorce records, birth or death records, police records, etc. DO NOT USE THIS FORM. Please see informaon above on how to request these records. 63 First Name Daniel Last Name Zyvoloski Organizaon/Company Not answered Street Address 2108 Highland Ct. Mailing Address Not answered City Bozeman State Montana ZIP Code 59715 Email Address Danzyvo@hotmail.com Phone Number (406) 570-2716 Records Requested Bozeman City Clerk, Under the Montana Public Records Act, pursuant to Arcle II, secon 9, of the Montana Constuon, and 2-6-1003, MCA, I am requesng informaon that relates to the City of Bozeman staff’s acons and procedures related to Bibs to Books Playhouse located at 2017 Highland Ct. Please provide all informaon, including any internal and external e-mail communicaon, phone logs and leer correspondence, from the City of Bozeman staff as it relates to Bibs to Books Playhouse (Operated by Barbara Limpus PV# 76409). Specifically, I am looking for the following informaon: • All communicaons between the City of Bozeman staff and Bibs to Books Playhouse or its representaves regarding its Business Licensing applicaons and procedures • Communicaon from the City Aorney’s Office to the City Clerk’s Office regarding or related to the scheduling of filed appeals to the City Commission related to Bibs to Books Playhouse • Communicaon from the City Aorney’s Office to the Community Development Division regarding or related to changes the Business License Applicaon on or aer Sept. 1, 2021 If there are any fees for searching, redacng, or copying these records, please inform me if the cost will exceed $1,000. This informaon is not being sought for commercial purposes. If access to the informaon I am requesng will take longer than 30 days, please contact me with informaon about when I might expect copies or the ability to inspect the requested records. If you deny any or all of this request, please cite each specific exempon you feel jusfies the refusal to release the informaon and nofy me of the appeal procedures available to me under the law. Thank you in advance for processing my public informaon request. Sincerely, Daniel Zyvoloski By subming this request, I hereby make applicaon for inspecon and/or copying of the following public records of the City of Bozeman, Montana and acknowledge that I have read and agree to Resoluon No. 4446, and approve and agree to pay the fees associated with this request. (○) Agree I prefer to receive my request through: (○) Email 64 From: Dan Zyvoloski Sent: Friday, November 19, 2021 9:44 AM To: Lara Guercio Subject: Fwd: Records Request Received second request This message was received from an external email account. Please use cauon when opening messages, aachments or external links from unknown senders. Sent from my iPhone Begin forwarded message: From: webadmin@bozeman.net Date: November 18, 2021 at 12:41:04 PM MST To: danzyvo@hotmail.com Subject: Records Request Received A new entry to a form/survey has been submied. Form Name:Records Request Date & Time:11/18/2021 12:40 PM Response #:714 Submier ID:46006 IP address:69.144.249.146 Time to complete:1 min. , 29 sec. Survey Details Page 1 Records Request Form We would be happy to help you with a records request related to city administraon or city governance. NOTICE: No new document will be created to respond to an informaon request. See Sect. 2-6-1006(4), MCA. Applicable informaon may be made available for requester to compile his/her own data subject to law, including the legal restricons regarding 65 creaon of mailing lists from public records. See See Sect. 2-6-1017, MCA. This form is NOT intended for requesng informaon regarding court cases, marriage licenses, divorce records, birth or death records, police records, etc. DO NOT USE THIS FORM. Please see informaon above on how to request these records. First Name Daniel Last Name Zyvoloski Organizaon/Company Not answered Street Address 2108 Highland Ct. Mailing Address Not answered City Bozeman State Montana ZIP Code 59715 Email Address Danzyvo@hotmail.com Phone Number (406) 570-2716 Records Requested Bozeman City Clerk, Under the Montana Public Records Act, pursuant to Arcle II, secon 9, of the Montana Constuon, and 2-6-1003, MCA, I am requesng informaon that relates to the City of Bozeman’s Community Development Division and certain Business Licenses and Business License Applicaon forms. Please provide the following informaon. • Business License Applicaon, Business License, renewal paperwork and any internal communicaon related to Bibs to Books Playhouse Business License # 56722 between 2001 and 2005 • Please provide a date (month/day/year) when the newly revised Business License Applicaon (Revision October) was made available for public use • Please provide a copy of the City of Bozeman’s inspecon reports that took place at Bibs to Books Playhouse on November 12, 2021, located at 2107 Highland Ct, and any internal e-mail communicaon or paperwork that prompted that an inspecon take place. • Please provide a copy of Bibs to Books Playhouses Business License Applicaon that was submied on the newly revised Business License Applicaon form. If there are any fees for searching, redacng, or copying these records, please inform me if the cost will exceed $500. This informaon is not being sought for commercial purposes. If access to the informaon I am requesng will take longer than 30 days, please contact me with informaon about when I might expect copies or the ability to inspect the requested records. If you deny any or all of this request, please cite each specific exempon you feel jusfies the refusal to release the informaon and nofy me of the appeal procedures available to me under the law. Thank you in advance for processing my public informaon request. Sincerely, Daniel Zyvoloski By subming this request, I hereby make applicaon for inspecon and/or copying of the following public records of the City of Bozeman, Montana and acknowledge that I 66 Bozeman City Clerk, Under the Montana Public Records Act, pursuant to Article II, section 9, of the Montana Constitution, and 2-6-1003, MCA, I am requesting information that relates to the City of Bozeman’s Community Development Division and certain Business Licenses and Business License Application forms. Please provide the following information. • Business License Application and Business License issued by the Bozeman Community Development Office to a Home-Based Daycare that was in operation in 2021 and Located on Hunters Way in the Harvest Creek Subdivision. • The daycare was operated by a Bozeman City Employee and was in conflict with the Homeowners Association whose president was then City Commissioner Michael Wallner. • Please also provide any e-mail and written communication between the Community Development Department and the Homeowners Association. If there are any fees for searching, redacting, or copying these records, please inform me if the cost will exceed $500. This information is not being sought for commercial purposes. If access to the information I am requesting will take longer than 30 days, please contact me with information about when I might expect copies or the ability to inspect the requested records. If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. Thank you in advance for processing my public information request. Sincerely, Daniel Zyvoloski 67 Page 1 of 4 December 20, 2021 City of Bozeman Board of Ethics c/o Office of the City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: City of Bozeman—Code of Ethics Complaint (Improper Government Actions, Standards of Conduct Violation, and Conflict of Interest Violation) Bozeman Board of Ethics and City Clerk Mass: This letter serves to provide supplemental information and evidence to our initial Code of Ethics complaint filed on December 8, 2021. Please confirm this letter has been provided within three working days of receipt by the City Clerk’s Office to the Board of Ethics, as well as City Attorney Greg Sullivan and Assistant City Attorney Kelly Rischke, whose actions are the subject of this filed complaint, as required by BMC § 2.03.640.C. As outlined in our initial complaint, the staff of the City of Bozeman Attorney’s Office, specifically Assistant City Attorney Kelley Rischke, acting independently or at the direction of the City Attorney, deviated from the City’s Standards of Conduct, created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions as defined and identified in the City’s Code of Ethics. The information outlined below provides newly acquired evidence that was received December 14, 2021, in response to our public records request submitted to the City on November 17, 2021 (as referenced in our initial complaint letter), and analysis to further support our complaint. Our appeal was held on December 14, 2021, and City Commissioners Cindy Andrus, Christopher Coburn, Terry Cunningham, Jennifer Magic, and I-Ho Pomeroy voted 5-0 to dismiss our appeal to the City Commission with prejudice. The City Commission’s decision to deny our appeal is based in part on the Assistant City Attorney’s Staff Report to the Mayor and City Commission and this report’s recommended motion to “uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197.” (December 3, 2021 Staff Report at pg. 2). Additional Facts and Evidence that Constitute the Violation As previously noted in our initial complaint and enclosures, we had filed a formal appeal per Bozeman Municipal Code (BMC) §12.02.190 on October 6, 2021 with the City Clerk to go before the City Commission to appeal the decision by the City that the home-based daycare business does not need to obtain a Business License. Per BMC § 38.700.090 “Home-Based Business” is defined as: “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” 68 Page 2 of 4 Based on information recently received from our public record request (with supporting records enclosed herewith), there is a clear picture of a violation that outlines how the Assistant City Attorney’s actions in the course of 2 hours on October 13, 2021, influenced the related official action that was then taken at the City Commission meeting held on December 14, 2021. Specifically: • At 10:26 AM, the Assistant City Attorney made an outgoing call on her cell phone to the home- based daycare business owner Barbara Limpus and talked for 17 minutes. • At 10:44 AM, the Assistant City Attorney e-mailed Ms. Limpus and provided the City’s then- current application for a business license, with specific instructions to leave the home-based business box (which would have triggered further review and an opportunity to be properly noticed by the City and the public to provide comment under existing and applicable home- based business regulations of the BMC) and other boxes unchecked. • At 12:28 AM, Ms. Limpus e-mailed the Assistant City Attorney to inform her that Ms. Limpus officially had received a business license for her home-based daycare business. • On October 13, 2021, the same day that the subject business license was applied for and issued, the City adopted Administrate Rule 2021-01, which created a unilateral change and amendment to the definitions contained in the BMC, specifically the application of its existing home-based business regulations to home-based daycare businesses. As outlined above, over the course of 2 hours, while our first filed appeal was pending, the Assistant City Attorney secured a significant personal and/or financial favor for a single home-based business owner and influenced the Community Development Department to unlawfully pass a new Administrate Rule without public review or participation and undermined our procedural due process right to provide public comment before the business license was issued. The Assistant City Attorney was ultimately rewarded for these improper actions on December 14, 2021, when the City Commissioners adopted her recommended motion (included in her December 3, 2021 Staff Report, also excerpted above and enclosed) to uphold the City’s new administrative rule for daycare business licensing and the license issued to Ms. Limpus’s home-based daycare on the very same day. If you want proof of what was the improper procedure and governmental actions underlying the filed ethics complaint, there is no need to look any further than the actions that the Assistant City Attorney took on October 13, 2021 to influence the outcome of the December 14, 2021 City Commission hearing. Please also bring into evidence the Executive Session that was held before the City Commission Meeting on December 14, 2021, to the extent it is relevant to this investigation. Any discussions or deliberations consisting of a quorum of City Commissioners regarding the pending Appeal Item should have been conducted before the public per Open Meeting Laws under MCA Sec 2-3-203. The political sensitivity of an item is not a lawful reason for a closed session discussion and the timing of the Executive Session was not a coincidence. Please find enclosed my public records request to obtain the video and recorded minutes from the Executive Session. The same voter-approved City Charter that established the Board of Ethics also established the proper procedures for amending or adopting the BMC through a Commission-managed public process. The 69 Page 3 of 4 Administrative Rule 2021-01 was only drafted (very likely with direct assistance from the City Attorney’s Office and specifically Ms. Rischke, although the City did not release this requested correspondence, based on claimed attorney-client privileges) and then signed by the Community Development Director, and it is a significant amendment to the BMC, specifically for home-based businesses and the applicable standards and public participation required for the City’s issuance of a business license to these businesses, which by the BMC’s plain terms, includes home-based daycares. Additionally, this rule was not created for the public good but specifically aimed at removing the opportunity to provide public comment and to dismiss one single administrative appeal that had been properly filed on October 6, 2021 and was pending a review and consideration before the City Commission at the time of the rule’s adoption on October 13, 2021. As such, the new Administrate Rule 2021-01 also meets the definition of a “legislative act” under MCA § 2-9-111(A) and carries the consequences of removing governmental immunity, as the legislative act was not lawfully discharged as outlined in the City Charter. Based solely on the language contained in this unlawful legislative act, the City Commissioners, who acted for themselves in their own official capacities, denied our appeal. As a result of the Assistant City Attorney’s actions, the City and the City Commissioners are not immune from any suit or damages brought against them. The voters of this City created the City Charter to explicitly outline the powers and restrictions for city officials and employees to operate and serve as impartial stewards of our local government. The Ethics component in the City Charter is what keeps city officials and employees accountable from impulsively creating public policy based on their own personal priorities and initiatives, without required community engagement or concern for the potential negative consequences of their hurried governmental actions. Conclusion This ethics complaint is not about the merits of the daycare licensing decision in dispute. This ethics complaint arises from the Assistant City Attorney’s determination to do what she (and possibly her supervisor, the City Attorney) deemed necessary and most expedient to remove the opportunity to consider public participation as part of the business licensing process and to ultimately sideline our October 6, 2021 appeal to the City Commission regarding the City’s business licensing requirements for home-based daycares under applicable and existing provisions of the City’s duly enacted BMC. This was not a fair, transparent, or impartial process, and the improprieties outlined need to be acknowledged and addressed by remedial action to preserve the public’s trust in our local government. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 Enclosures on Following Page 70 Page 4 of 4 Enclosures: 10.13.21 – Verizon – Cell Phone Call Details for Kelley Rishcke 10.13.21 – Kelly Rischke E-Mail to Barbra Limpus 10.13.21 – Barbra Limpus E-Mail to Kelly Rischke 10.13.21 – New Administrative Rule 2021-01 12.3.21—Staff Report from Ms. Rischke to Mayor and City Commission (Including recommended motion) 12.17.2021 – Public Records Request – Executive Session Minutes from December 14, 2021 8.12.2021 – DPHHS Inspection report to Confirm Barbara Limpus Phone Number 11.7.2006 – The City of Bozeman, Charter 71 verizon1^Invoice Number Account Number Date Due Pagei||||9»9Mg|l:g4IQg§W^|gOM:IV:1|g1i[|a2..of@ii,•P;:^. :;;R^?™KB \.::?:.H.§:ii::^¥?:i;!::li:i:i 'i '...:f:i.....:;:;i:.!!^:3; ;;!;. f..^f!'^s™f™S^ :!:l^g<:i:i::':^'.::::i... .^ li:i ;:;! ;;i....<!;:. :.;:;:i.i.. ^iDetail for Kelley Rishcke: 406-595-7992VoiceDate Time NumberRate Usage TypeOriginationDestinationMin. AirtimeChrgs U/Other Chrgs Total9/21 1:53P 406-582-2311PeakBozeman MTBozeman MT169/22 3:50P 406-582-2311PeakBozeman MTBozeman MT24S/22 4:14P 406-582-2950PeakBozeman MTBozeman MT189/23 S:45A 406-589-5480Peak M2MAIIowBozeman MTBozeman MT19/23 10:24A 406-582-2260PeakBozeman MTIncoming CLs9/24 1:28P 406-582-2375PeakBozeman MTBozeman MT19/24 1:29P 406-582-2950PeakBozeman MTBozeman MT19/24 1:4SP 406-582-2375PeakBozeman MTIncoming CL49/28 2:48P 406-582-2311PeakBozeman MTBozeman MT189/28 4:42P 406-582-2300PeakBozeman MTIncoming CL429/29 3-.26P 406-589-5480Peak M2MAIIowBozeman MTIncoming CL69/30 8:38A 406-570-3038Peak M2MAIIOWBozeman MTIncoming CL109/30 9:05A 406-586-5544PeakBozaman MTBozeman MT129/30 9:28A 406-586-5544PeakBozeman MTIncoming CL9/30 2:09P 406-998-0956PeakBozeman MTIncoming CL19/30 2:59P 406-723-6244PeakBozeman MTButte MT10/01 10:51A 406-582-2311PeakBozeman MTIncoming CL710/01 3:06P 406-589-6271Peak M2MAIIOWBozeman MTBozeman MT3010/04 11:12A 406-551-0209Peak M2MAIIOWBozeman MTIncoming CL110/05 10:54A 406-582-2311PeakBozeman MTIncoming CL410/05 3:18P 406-582-2311PeakBozeman MTBozeman MT510/06 2:50P 406-595-5749Peak MZMAIIowBozeman MTIncoming CL1010/06 9:29P 406-589-5480Off-Peak M2MAIIOWBozeman MTIncoming CL810/07 10:10A 406-589-5480Peak M2MAIIOWBozeman MTIncoming CL2410/11 1:44P 406-595-5749Peak M2MAIIowBozeman MTBozeman MT110/13 10:26A 406-581-8375Peak M2MAIIOWBozeman MTBozeman MT1710/14 12:58P 406-551-0209Peak M2MAIIOWBozeman MTIncoming CL310/14 3:24P 406-570-0176Peak M2MAIIOWBozeman MTIncoming CL310/14 3:56P 406-551-0209Peak M2MAIIOWBozeman MTBozeman MT1310/18 8:43A 406-582-2320PeakBozeman MTIncoming CL410/19 11:47A 406-582-2320PeakBozeman MTIncoming CL110/19 1:53P 406-570-3038Peak M2MAIIOWBozeman MTIncoming CL210/19 1:55P 406-595-5749Peak M2MAIIOWBozeman MTBozeman MT310/19 2:12P 406-582-2267PeakBozeman MTIncoming CL410/20 11:30A 406-582-2310PeakBozeman MTIncoming CL472 Kelley RischkeFrom:Sent:To:Subject:Kelley RischkeWednesday, October 13, 2021 10:44 AMbarbcml@msn.com,· shannell.limpus@gmail.combusiness license applicationDear Barbara,It was nice to speak with you today. As we discussed, please fill out an application for a business license at your earliestconvenience. The application is onlineat: https://www.bozeman.net/home/showpublisheddocument/688/637169318508100000. The application fee iswaived, so don't worry about that. You can leave all of the boxes unchecked for home based business, commerciallocation, and out of city limits location because group and family day care businesses don't fit into any of thosecategories. We will update our forms soon to provide another checkbox for day care businessesPlease don't hesitate to contact me if you have any questions.Sincerely,KelleyKelley Rischke | Assistant City AttorneyCity of Bozeman | 121 N. Rouse Ave. | Bozeman, MT 59715 | 406.582.2289BOZEMANMTCity Aiiotncy'., O'l'''.-Email sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do not read,copy or disseminate this communication unless you are the intended addressee. If you received this communication in error,please respond to this email and call me immediately at 406 582-2289.173 Kelley RischkeFrom:Sent:To:Subject:Barb Limpus <barb.limpus@gmail.com>Wednesday, October 13, 2021 12:38 PMKelley RischkeRe: business license applicationCAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Thank you for your time today. We are officially have our business license.I also left you a message in regards to getting our license numbers updated with the city.Have a blessed day.On Wed, Oct 13, 2021 at 10:44 AM Kelley Rischke <KRischke@,bozeman.net> wrote:Dear Barbara,It was nice to speak with you today. As we discussed, please fill out an application for a business licenseat your earliest convenience. The application is onlineat: https://www.bozeman.net/home/showpublisheddocument/688/637169318508100000. The application feeis waived, so don't worry about that. You can leave all of the boxes unchecked for home based business,commercial location, and out of city limits location because group and family day care businesses don't fit intoany of those categories. We will update our forms soon to provide another checkbox for day care businessesPlease don't hesitate to contact me if you have any questions.Sincerely,KelleyKelley Rischke | Assistant City Attorney^City ofBozeman I 121 N. Rouse Ave. I Bozeman. MT 59715 | 406.582.2289BOZEMANCity Attoineys OtiiceMTEmail sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do notread, copy or disseminate this communication unless you are the intended addressee. If you received this communication inerror, please respond to this email and call me immediately at 406 582-2289.174 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman [City) zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health ofBozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers.Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street \ @P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | © 406-582-2263 j www.bozeman.netTRD- 406-589-9301THF MOST IIVARI F Pl AFF75 Page 2 of 2*fDefinitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code (BMC),the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection^] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.^^^latsenCommunity Development Director76 Commission Memo Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse December 3, 2021 Report To: Mayor and City Commission From: Kelley Rischke, Assistant City Attorney Subject: Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse Meeting Date: December 14, 2021 Agenda Type: Action CITY COMMISSION ACTION: At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the decision of the City to issue a business license to Bibs to Books Playhouse. The decision may be overturned or amended upon finding the administrative decision was erroneous. Report Date: December 3, 2021 EXECUTIVE SUMMARY: This appeal, filed by Daniel Zyvoloski (Appellant) pursuant to section 12.02.190 of the Bozeman Municipal Code (BMC), seeks to overturn the City of Bozeman’s (City) decision to issue a business license to Bibs to Books Playhouse, his neighbor’s legally registered and compliant day care operation. Appellant’s original complaint centered around the fact Bibs to Books Playhouse was operating without a City business license. The City explained a license was not required and Appellant submitted an appeal of that determination. The City reconsidered the matter and subsequently issued an Administrative Rule addressing Appellant’s concerns regarding day care business licenses. Bibs to Books Playhouse applied for and obtained a license under the newly adopted Administrative Rule, thus addressing Appellant’s concerns that they be licensed with the City. Appellant now appeals the City’s decision to issue a business license and asserts the City violated sections 38.250.010 and 38.200.100, BMC. Specifically, Appellant requests: “that the City Commission reverse the City’s decision to issue Business License No. 21-69197 and require that the Applicant cease operating until it can obtain a business license that is compliant with the BMC’s applicable requirements, including the Applicant signing the City’s Home-Based Business Acknowledgement Form and issuance by the City of a Special Use Permit, as necessary prior to being licensed as a home-based business.” 77 Page 2 of 12 In his Supplement to Administrative Appeal of Business License No. 21-69197 for a Home- Based Daycare (Supplement), dated December 2, 2021, Appellant adds to the scope of this appeal by alleging that the City’s adoption of Administrative Rule 2021-01 was improper because it “exceeds the City’s scope of authority per BMC § 12.02.050.A.1.” Appellant contends, “this new rule goes far beyond the City’s limited authority to create administrative or ministerial rules and regulations required for the City to operate and enforce [sic] of the Code’s existing business license provisions, since the rule substantially changes the existing scope of the BMC’s Home-Based Business (HBB) provisions.” Appellant asks the City Commission to invalidate Administrative Rule 2021-01 pursuant to the Commission’s authority to review and modify any rule promulgated for the operation and enforcement of the business license chapter. See 12.02.050.A.1, BMC. The City defends its issuance of business license 21-69197 because: sections 38.250.010 and 38.200.100, BMC, are not applicable to the issuance of business licenses; the City did not exceed its scope of authority in adopting Administrative Rule 2021-01; and the City’s issuance of Business License 21-69197 was proper. Appeals of business licenses are governed by 12.02.190, BMC. The record of review for this matter consists of the Business License #21-69197, Bibs to Books Playhouse’s application for a business license, and correspondence between the Appellant and City regarding the City’s decision to require a business license for Bibs to Books Playhouse1. At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the City’s decision to issue business license number 21-69197. The decision may be overturned or amended upon finding the administrative decision was erroneous. Consider the Recommended Motion: Having reviewed and considered this appeal of the City’s issuance of business license number 21-69197 to Bibs to Books Playhouse, including the staff report, record of review, the presentation of staff and the Appellant, public comment, and all information presented, I move to uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197. 1 The materials for this appeal are somewhat duplicative because Appellant produced some, but not all of the correspondence between the parties as an attachment to his supplement and all correspondence is provided as part of the administrative record. Additionally, staff tried to reduce email redundancy in the administrative record, but because email communications are often cumulative, the production of emails in the materials contain redundant emails. 78 Page 3 of 12 Table of Contents EXECUTIVE SUMMARY: ........................................................................................................................................ 1 TABLE OF CONTENTS: .......................................................................................................................................... 3 BACKGROUND:……………………………………………………………………………………………………….….4 Timeline of Correspondence and Issuance of Business License Number 21-69197….4 BASIS OF THE APPEAL:………………………………………………………………………………………………4 Violations of Sections 38.250.010 and 38.200.100…………………………………………………5 City’s Adoption of Administrative Rule 2021-01 was Improper…….………………………..7 APPEAL OF THE ADMINISTRATIVE DECISION……………………………………………………………9 APPEAL PUBLIC NOTICE:………………………………………………………………………………………….10 APPEAL PUBLIC COMMENT:…………………………………………………………………………………….10 EVALUATION OF THE APPEAL AND PROCEDURE:..…………………………………………………..10 Authority of the City Commission under the Bozeman Municipal Code…………………10 UNRESOLVED ISSUES:………………………………………………………………………………………………11 12.02.190.A, BMC, “Aggrieved Person” Standard…………………………………………………11 Code of Ethics Complaint…………………………………………………………………………………...11 ALTERNATIVES:……………………………………………………………………………………………………..11 FISCAL EFFECT:………………………………………………………………………………………………………11 ATTACHMENTS:……………………………………………………………………………………………………..11 79 Page 4 of 12 BACKGROUND: Administration of the business license program has been housed with several different divisions of the City over the years. Most recently, the City Manager has appointed the Director of Community Development to administer the business license program pursuant to 12.02.050.A, BMC. Administrative staff at the Division of Community Development collect applications and license fees, coordinate any necessary inspections by City officials, and issue business licenses. Prior to October 13, 2021, the City did not require day care operators to obtain a business license. While this policy was unwritten, the City treated day care operators similarly to other professions that are regulated by the State of Montana i.e. if the State regulates an industry, it is exempt from requiring a business license2. The Montana Department of Public Health and Human Services (DPHHS) regulates day care operations by enforcing state laws and promulgating regulations governing day care providers. Although not required, some day care operators chose to obtain a business license. Prior to October 13, 2021, the City’s practice was to inform day care operators that they were not required to hold a business license, but if the day care operator applied for a business license and paid the fee, a business license would be issued. A timeline of correspondence is provided below and the correspondence provides a detailed account of the City’s actions, but to summarize, Appellant first complained of his neighbor’s day care operating without a city business license on July 21, 2021. The City first verified the day care was properly licensed with the State and confirmed that day care complied with zoning regulations. The City communicated its policy regarding business licenses and day cares to Appellant. After some discussion and review, the City agreed with Appellant’s general point of view that day cares should have business licenses and adopted Administrative Rule 2021-01. Administrative Rule 2021-01 requires day care providers to obtain a business license, but waives the application fee and only requires inspections when the City believe it is reasonably necessary for code enforcement purposes or to ensure compliance with state regulations. Bibs to Books Playhouse, a group day care business properly registered with DPHHS and operating in an R-1 zoning district, applied for and received a business license pursuant to Administrative Rule 2021-01. Appellant 2 Due to the City’s building permit software, plumbers and electricians, which are regulated by the State of Montana, are nonetheless required to obtain a business license from the City before building permits can be issued. The City waives business license application fees for plumbers and electricians. Most do not need any inspections because they either operate home-based businesses or their business is located out of City limits. For public health, welfare, and safety reasons, the City requires marijuana businesses to obtain a business license even though marijuana businesses are regulated by the state. See 12.02.040.F. 80 Page 5 of 12 appeals the City’s creation of the Administrative Rule and issuance of a business license to Bibs to Books Playhouse. Timeline of Correspondence and Issuance of Business License Number 21-69197 Complaint submitted via email from Mr. Zyvoloski’s counsel July 21, 2021 Director Matsen email response to complaint August 6, 2021 Response via email from Mr. Zyvoloski August 12, 2021 Formal complaint filed by Mr. Zyvoloski’s counsel August 31, 2021 Director Matsen response to formal complaint September 21, 2021 Complaint re: building permit submitted via email by Mr. Zyvoloski September 23, 2021 Director Matsen email response to complaint re: building permit September 23, 2021 Correspondence from Mr. Zyvoloski’s counsel re: business license September 30, 2021 1st Appeal re: business license decision from Mr. Zyvoloski’s counsel October 6, 2021 Issuance of business license 21-69197 to Bibs to Books Playhouse October 13, 2021 Attorney Rischke response to 1st Appeal October 15, 2021 2nd Appeal submitted by Daniel Zyvoloski October 27, 2021 Supplemental application info provided by Bibs to Books Playhouse November 18, 2021 Attorney Rischke response to 2nd appeal & notice of hearing November 19, 2021 Appeal Supplemental materials submitted by Mr. Zyvoloski December 2, 2021 Commission Hearing December 14, 2021 BASIS OF THE APPEAL:  Violations of Sections 38.250.010 and 38.200.100: First, Appellant contends that the City has violated its code in issuing a business license to Bibs to Books Playhouse because a principal purpose of the code is to “establish procedures (including for any permitted departures, deviations, or variances therefrom) for providing and preserving equitable implementation of the law to ‘prevent special treatment to particular parties…’” pursuant to section 38.250.010, BMC. However, his allegation is misguided because Chapter 38 applies to development matters, not to business licenses. Nonetheless, the City’s business license rules for day care operations under Chapter 12 apply equally to all day care providers. No special treatment was afforded to Bibs to Books Playhouse; the business was simply the first day care to apply for and receive a business license under Administrative Rule 2021-01, which is explained below. Appellant’s next allegation is that the City has violated section 38.200.100 by issuing a permit or license without an application in conformance with the regulations contained within the Unified Development Code. As above, the basis for Appellant’s assertion lies in Chapter 38, not Chapter 12. Further, when read in context, the section of code Appellant cites is clearly not related to business licenses. The title of section 38.200.100 is “Building permit requirements” (emphasis in original). The next section of the code, which 81 Page 6 of 12 contains the quote that forms the basis of Appellant’s argument, is similarly related to building permits, not business licenses. See 38.200.110, BMC. Even if Appellant had cited similar authority from Chapter 123, Bibs to Books application is currently complete, with all missing information noted by Appellant addressed. The City often receives business license applications that are incomplete or have omitted information. According to Lacie Kloosterhof, Office Manager of the Community Development Division, the City’s practice is to contact the applicant and work with them to fill in the omitted information, as was the case with Bibs to Books Playhouse’s application after Appellant pointed out omissions in the original application. Because the zoning district does not determine eligibility for home-based, out-of-city-limits, and now day care business licenses, it is often left blank on applications and does not prevent processing or invalidate the license application. Check boxes on the application regarding changes to the business structure are primarily intended to put applicants on notice that they must obtain proper building, electrical, mechanical, plumbing, or sign permits. Regardless of whether the business license should have been issued on October 13, 2021 when the original application was received, all ministerial errors have been corrected and the business has a valid business license. Appellant also complains that the City’s decision to not charge day care operators for a business license application violates section 38.200.100. Again, the citation to Chapter 38 is inapplicable to business licenses4. However, even the provisions of Chapter 12 support the City’s decision to not charge a business license application fee to day care providers. “All business license fees are based on the costs of administering this chapter and the regulatory costs incurred.” 12.03.010, BMC. The regulatory costs of administering business licenses to day care providers are minimal because Administrative Rule 2021-01, as discussed below, waives inspections by City officials unless the City believes an inspection is reasonably necessary. Appellant notes that the City issued a business license to Bibs to Books Playhouse the same day that the application was received, which highlights the streamlined, minimal administration associated with processing day care business licenses. Notably, the costs of processing payment by the City’s finance department, staff costs associated with budgeting processes, and building and fire inspections in most cases are avoided in this streamlined process. Therefore, the City’s waiver of business license application fees for day care operators is reasonable. 3 See sections 12.02.050.A.2 and 12.02.060A.2, BMC. 4 But see section 12.02.060.A.4, BMC, which requires that “the [business license] application shall be accompanied by the full amount of the fees chargeable for such license.” 82 Page 7 of 12  City’s Adoption of Administrative Rule 2021-01 Was Improper: Appellant’s objections regarding the City’s adoption of Administrative Rule 2021-01 are summarized as: the City exceeded its scope of authority to adopt Administrative Rule 2021- 01 under 12.02.050.A.1 because a) the rule is not a reasonable rule or regulation necessary to the operation and enforcement of the business license chapter of the code and, rather, the City should have required Bibs to Books Playhouse to apply for a business license as a home based business as defined in section 38.700.090; and b) the City impermissibly denied the public the right to participate when it wrote and adopted Administrative Rule 2021-01. Finally, Appellant requests that the Commission “invalidate this unauthorized administrative rule and invalidate the subject business license, which the City improperly issued based on this rule,” pursuant to section 12.02.050.A.1, BMC. The City Commission intended the program administrator to make rules and adopt forms to implement the business license requirements in Chapter 12. Specifically, the program administrator is granted authority to “promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter,” 12.02.050.A.1, BMC. Further, the program administrator is directed to “adopt all forms and prescribe the information to be given therein as to character…,” 12.02.050.A.2, BMC. Appellant argues that the City exceeded its rulemaking authority when it determined that a departure was warranted from the only three categories of businesses identified on business license applications prior to October 13, 2021 and that it should have rigidly required day care businesses to identify as a home-based business. However, notably, all of the prior three categories of businesses – Commercial Location, Home-Based Location, and Out of City Limits Location -- were likewise created administratively. Except for an unutilized definition of home-based business, Chapter 12 is silent as to categories of businesses and the administration of business licenses to each. Given this clear and express authority to promulgate rules and determine the information to be included in the application form in Chapter 12, Appellant’s argument that the City lacks authority to do so fails. The creation of a new category of business licenses and the associated revision of the business license application form was a proper exercise of administrative rulemaking authority. The City considered that there was no express exemption in state law or municipal code for group and family day care operators and ultimately conceded that day care operations should be required to obtain a business license. Then the City considered the inherent differences between day care businesses and home-based businesses, as discussed below. The City also researched and gave consideration to the extensive DPHHS regulations that licensed or registered day care operators must comply with that protect public health, welfare, and safety. Given the direct authority to promulgate administrative rules found in 12.02.050.A.1, the City decided to craft a business license rule for all day care operations 83 Page 8 of 12 that would strike a balance between the acute need for day care services and the City’s desire to require businesses of all kinds to obtain a business license. While the definition of a home based business may seem to describe a day care operating out of a residential dwelling, a plain reading of the regulations applicable to home-based businesses reveals that they are intended to regulate businesses that have characteristics that differ significantly from day care operations. For instance, “in general, an accessory home-based business is a use so located and conducted that the average neighbor, under normal circumstances, would not be aware of its existence with the exception of permitted signage…” 38.360.150.B.2, BMC. Further, there are several necessary conditions to conduct a home-based business as an accessory use, such as: permitting not more than one on-premises halftime nonresident employee; restricting the business portion of the dwelling to no more than 25 percent of the gross area of the structures; prohibiting an increase in use of utilities, including water and sewer; vehicular traffic flow and parking are restricted to no more than one additional vehicle at a time; and the home-based business must not create noise any greater or more frequent than usually experienced in an average residential occupancy under normal circumstances. See 38.360.150.B.3, BMC. The City considered requiring day care operators to obtain a business license as a home based business, but rejected the notion due to these significant differences. Day care operations, by their nature, generate traffic and parking in excess of one additional vehicle during pick up and drop off times and may create greater levels of noise from children playing outside. Day care operators likely use more than 25 percent of their home to care for children including kitchen facilities, sleeping rooms, and common areas for play spaces. Pursuant to DPHHS regulations, day care operators have staff to children or infant ratio requirements that would likely be in excess of one halftime nonresident employee. It is clear that home-based business regulations, if applied to day care operations, would result in a de facto prohibition on day care businesses in residential districts. Instead, the BMC expressly treats day care uses and home-based businesses in residential zoning districts differently. See 38.310.030.A and 38.310030.B, BMC. Group and family day care homes are a principal use in all residential zoning districts, pursuant to land use table 38.310.030.A. Home-based businesses are an accessory or special use in all residential zoning districts, pursuant to land use table 38.310.030.B. This distinction comports with state statutes that require: “a family day-care home or group day-care home … is considered a residential use of property for purposes of zoning,” group day care is “a permitted use in all residential zones, including but not limited to residential zones for single-family dwellings…,” and “a city or county may not require a conditional use permit in order to maintain a day-care home registered by the department of public health and human services.” Mont. Code Ann. § 76-2-412, 2021. 84 Page 9 of 12 Without citing any requirement in code or statute, Appellant appears to raise a procedural due process complaint. Appellant argues that “the creation of this new administrative rule behind closed doors creates a precedent that all City departments can create new rules and regulations that the community doesn’t even knows [sic] exists, as they are not subject to standard public notice, review and comment requirements or review and approval by the City Commission prior to the City’s internal enactment of an administrative rule.” While State agencies are subject to the provisions of the Montana Administrative Procedures Act (MAPA), which provides a process for public participation in agency rulemaking, MAPA does not apply to municipalities. Mont. Code Ann. § 2-4-101 et seq., see in particular the express exclusion of “a unit of local government” from the definition of “agency” in Mont. Code Ann. § 2-4-102(2)(b). There is no analogous provision in the BMC requiring a public process for administrative rule making. That the City Commission would provide authority to an administrator to promulgate reasonable rules without a public process makes sense because administrative rulemaking would have no distinction from enacting an ordinance otherwise. For the reasons set forth above, the City Commission should not invalidate Administrative Rule 2021-01 and should uphold the City’s decision to issue business license 21-69197. The City was reasonable in adopting a rule creating a distinct business license category for day care operations because day care operations are expressly distinct from home-based businesses and because imposing the requirements of home-based businesses on day care operations would lead to the absurd result of effectively prohibiting day care operations in residential zoning districts. The City did not impermissibly deny the public a right to participate in its adoption of Administrative Rule 2021-01 because no public process was required. APPEAL OF THE ADMINISTRATIVE DECISION: On October 27, 2021, the City received this appeal from Daniel Zyvoloski, pursuant to Section 12.02.190, BMC. Although the context of Chapter 12, when read as a whole5, insinuates that an appeal would be made by an applicant or licensee whose application is denied or whose license is suspended or revoked, the plain language of 12.02.190 states, “Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission…” (emphasis added). Whether Appellant is a “person aggrieved” is addressed in the Unresolved Issues section of this staff report, below. Staff reviewed the appeal application materials and, while it was novel for a person not related to the underlying business appeal the issuance of a license, found that the application met all submittal requirements for processing the appeal. The Appellant was notified on 5 See in particular the two sections that immediately precede the appeal provisions of Chapter 12, 12.02.170 and 12.02.180, BMC. 85 Page 10 of 12 November 19, 2021 that the appeal was complete and that a hearing on the appeal before the City Commission on December 14, 2021 was scheduled. APPEAL PUBLIC NOTICE: Notice of the appeal hearing was provided through publication of the City Commission’s agenda on the City of Bozeman website and hard copy notice posted in City Hall. APPEAL PUBLIC COMMENT: The City has received no comments regarding this appeal from the public at the time of writing this staff report. Any public comment received will be forwarded to the City Clerk’s office for Commission consideration. EVALUATION OF THE APPEAL AND PROCEDURE: The City Commission has the authority to hear this appeal pursuant to Section 12.02.190, BMC: Sec. 12.02.190. Appeal. A. Right of appeal. Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission by filing a written appeal with the city clerk within 20 days following the effective date of the action taken or the decision made. B. Contents of appeal. Such appeal shall set out a copy of the order or decision appealed and shall include a statement of the facts relied upon to avoid such action taken or decision made. C. Notification of city manager. At the time of filing any such appeal a copy thereof shall be filed by the appellant with the city manager. D. Hearing. The city commission shall fix a time and place for hearing the appeal and shall personally serve a written notice, as provided herein, upon the appellant informing the appellant thereof. The city commission shall also give such notice to the city manager and such officer shall be entitled to appear and defend such action taken or decision made. E. Effect of decision. The findings of the city commission shall be final and conclusive and shall be personally served upon the appellant as required herein. During the appeal, the Commission will first hear from City staff for an explanation of the application and nature of the appeal. Next, the Appellant will have an opportunity to present its position. Commissioners will have an opportunity to ask questions of City staff and Appellant. Then, the Commission will hear public comment regarding the appeal from any proponent or opponent. At the close of public comment, the Commission must consider the merits of the appeal, including considering motions, discussion, and taking a vote. 86 Page 11 of 12 UNRESOLVED ISSUES: 12.02.190.A, BMC, “Aggrieved Person” Standard: The right of appeal of a business license extends to “any person aggrieved.” While an “aggrieved person” is defined in the Unified Development Code (Chapter 38 of the BMC) pertaining to an “aggrieved person’s” ability to file an appeal of an administrative project decisions, no similar guidance is provided in Chapter 12 of the BMC pertaining to business license appeals. Often questions of standing involve an analysis of whether an appellant has a concrete, particularized and imminent injury. To ensure an expeditious hearing on the merits of this appeal, the City declines address whether this Appellant is an “aggrieved person,” but preserves the issue as an affirmative defense for any appeal of the City Commission’s decision. Code of Ethics Complaint: Appellant’s Supplement indicates that he will file a Code of Ethics complaint. The City Commission has no jurisdiction over code of ethics complaints and should not be considered as part of this appeal. See section 2.03.600.A.3, BMC. Note, however, that: The board does not have the authority to reverse or otherwise modify a prior action of the mayor, city commission, or an officer or employee of the city. If the board finds a prior action of the mayor, the city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body. Section 2.03.620, BMC. ALTERNATIVES: The City Commission has the following alternative actions available: 1. Uphold the City’s decision to issue business license 21-69197. 2. Amend or modify the City’s decision to adopt Administrative Rule 2021-01 and issue business license 21-69197. 3. Overturn the City’s decision issue business license 21-69197. The decision may be amended or overturned upon making alternative findings to support the conclusion that the City’s decision was in error. FISCAL EFFECT: None. ATTACHMENTS: October 27, 2021 Appeal filed by Daniel Zyvoloski – submission materials and attachments December 2, 2021 Supplement to Administrative Appeal of Business License No. 21- 69197 for a Home-Based Daycare – submission material and attachments 87 Page 12 of 12 Record of Review:  Business License 21-69197 issued to Bibs to Books Playhouse;  Application for a business license submitted by Bibs to Books Playhouse; and  Correspondence between the City and Appellant. The full appeal and file record are available to view by contacting the Community Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Lacie Kloosterhof at lkloosterhof@bozeman.net or 406-582-2954 to make arrangements to view the file. 88 December 17, 2021 City of Bozeman c/o City Clerk 121 N Rouse, Suite 201 Bozeman, MT 59715 Submitted December 17, 2021, (via the Bozeman City Clerk’s Online Records Request Form) Bozeman City Clerk, Under the Montana Public Records Act, and pursuant to Article II, section 9 of the Montana Constitution, and specifically MCA 2-6-1003, I am hereby requesting information that relates to the City Commissioners’ Executive Session held on December 14th, 2021, directly before the City Commission’s scheduled public meeting. Per Bozeman City Code Sec. 2.02.130(B)(3) (Executive session minutes) and Sec 2.02.110(A) (Open Meetings and email) as excerpted below: “Except for properly called executive session as permitted by state law, all meetings of the city commission shall be open to the public and media, freely subject to recording by radio, television and photography at any time, provided that such arrangements do not interfere with the orderly conduct of the meetings.” In accordance with the above legal requirements, please provide: (i) a WebEx video recording of the Executive Session at your earliest convenience. Specifically, we are asking for any WebEx video or minutes held during the executive session that relates to the Action Item on the Agenda titled “Appeal of Issuance of Business License 21-69197 to Bibs to Books Playhouse.”; and (ii) the minutes as prepared by the City Clerk and approved by the City Commission once available, all for the Executive Session “City Manager Annual Performance Evaluation” held on December 14, 2021. The Mayor closed the meeting and went into Executive Session per a memorandum dated December 14, 2021, with the Subject: City Manager Annual Performance Evaluation. Pursuant to MCA Sec. 2.3-203(3): “The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains, and, in that event, the meeting must be open.” Any matter relating to the individual privacy concerning the City Manager’s Performance Evaluation may be redacted in accordance with this statute and its applicable exemption. As the City Managers’ Performance Evaluation does not concern the City Attorney’s Office, we respectfully reject the impression that any attorney/client privileged information was produced. Any and all other information pertaining to this Executive Session is subject MCA Sec 2-3-203(2) which provides: 89 “All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that regulate the rights, duties, or privileges of any individual must be open to the public.” If there are any fees for searching, redacting, or copying these records or WebEx video recordings, please inform me if the cost will exceed $500. This information is not being sought for commercial purposes. If access to the information that I am requesting will take the City longer than 25 days to provide, please contact me with an estimated date by which I will receive recordings and copies of minutes for the subject Executive Session or be provide with an opportunity to inspect and review these requested public records in person. If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. Thank you in advance for processing my public information request. Sincerely, Daniel Zyvoloski 406-570-2716 Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 90 Department of Public Health and Human Services Early Childhood and Family Support Division ♦ 1625 11th Avenue ♦ PO Box 4210 ♦ Helena, MT 59620-4210 SURVEY TOOL Facility Name: Barbara Limpus Provider ID: PV76409 Address: 2107 Highland Court, Bozeman, MT 59715 Type: Group Child Care Service Area: Bozeman Assigned Worker: Teri Whitesitt Director: Barbara Limpus Phone: (406) 581-8375 Email: barbcml@msn.com Contact: Barbara Limpus Phone: 4065818375 Email: barbcml@msn.com Inspection Type: Renewal Inspection Date: 08/12/2021 Time In: 8:00 AM Time Out: 9:10 AM Inspector: Teri Whitesitt Phone: 406-522-2271 Children/Caregiver Observations Time: 8:00 AM # children: 5 # under 2: 1 # caregivers: 2 Time: 9:10 AM # children: 11 # under 2: 2 # caregivers: 2 Time:# children:# under 2:# caregivers: Staff Ratios 1. License Yes 2. Overlap Yes Building/Fire Requirements 3. Inside Facility Yes 4. Fire Safety No 37.95.706.GROUP AND FAMILY DAY CARE HOMES, FIRE SAFETY REQUIREMENTS 3.All child care facilities must have operating UL smoke alarms on each floor of the facility, installed inaccordance with the manufacturer's specifications. Smoke alarms must be installed in front of the doorsto stairways, in corridors of all floors, and in all rooms where children sleep. Deficiency The intent of this rule was not met: Based on observation on 8/11/21, CCL observed the nap room did not have a smoke detector. 08/12/2021 1 of 4 91 cr'IV OJ BOZ'E~JtN, OJ{r~j\ Effecti've January 1,2008 92 THE CITY OF BOZEMAN, MONTANA CHARTER PREAMBLE We, the people of the City of Bozeman, under the constitution and laws of the State of Montana, in order to secure the benefits of local self-government and to provide for an honest and accountable commission-manager government, do hereby adopt this charter and confer upon the city the following powers, subject to the following restrictions, and prescribed by the following procedures and governmental structure. By this action, we secure the benefits of home rule and self-governance and affirm the values of representative democracy, professional management, strong political leadership, citizen participation, and regional cooperation. ARTICLE I POWERS OF THE CITY Section 1.01. Powers of the City. The City of Bozeman shall have all powers possible for a city with self-governing powers to have under the constitution and laws of the State of Montana as fully and completely as though they were specifically enumerated in this charter. Section 1.02. Construction. a) Powers. The powers of the city under this charter shall be construed liberally in favor of the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power granted in this article. b) Priority Construction. As provided by Article XI, Section 5, of the Constitution of Montana, provisions herein establishing executive, legislative, and administrative structure and organization are superior to statutory provisions. Section 1.03. Intergovernmental Relations. The City of Bozeman may participate by contract or otherwise with any governmental entity of the State of Montana or any other state or states or the United States in the performance of any activity which one or more of such entities has the authority to undertake. 93 ARTICLE II CITY COMMISSION Section 2.01. General Powers and Duties. All powers of the city shall be vested in the city commission, except as otherwise provided by law or this charter, and the commission shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. Section 2.02. Eligibility, Terms, and Composition. a) Eligibility. Only registered voters whose principal residence is in the City of Bozeman shall be eligible to hold the office of commission member or mayor. b) Terms. The term of office of elected officials shall be four years elected in accordance with Article VI. c) Composition. The commission shall be composed of four members elected by the voters of the city at large in accordance with provisions of Article VI and the mayor. The mayor shall be elected as provided in ~2.03(b). Section 2.03. Mayor a) Powers and Duties. The mayor shall be a voting member of the city commission and shall attend and preside at meetings of the commission; represent the city in intergovernmental relationships; present an annual state of the city message; add an item to the commission agenda prepared by the city manager; assign, subject to the consent of commission, agenda items to sub-committees of the commission; and perform other duties specified by the commission. The mayor shall be recognized as head of the city government for all ceremonial purposes and by the governor for purposes of military law but shall have no administrative duties and shall not interfere with the administration of the city as provided in ~2.05(c), below. The mayor shall not have any appointment power to city boards exceptwhere required by state law. b) Mayor Elected At Large. At every regular city election the voters of the city shall elect a mayor at large for a term of four years. The person so elected shall serve as deputy mayor and a commissioner for the first two years of his or her term, and mayor for the balance of his or her term of office. Section 2.04. Compensation; Expenses. The city commission may determine the annual salary of the mayor and commission members by ordinance, but no ordinance increasing such salary shall become effective until the date of commencement of the terms of commission members elected at the next regular 2-94 election. The mayor and commission members shall receive their actual ordinary and necessary expenses incurred in the performance of their duties of office. Section 2.05. Prohibitions. a) Holding Other Office. Except where authorized by law, no commission member shall hold any other elected public office during the term for which the member was elected to the commission. No commission member shall hold any other city office or employment during the term for which the member was elected to the commission. No former commission member shall hold any compensated appointive office or employment with the city until one year after the expiration of the term for which the member was elected to the commission, unless granted a waiver by the board of ethics. Nothing in this section shall be construed to prohibit the commission from selecting any current or former commission member to represent the city on the governing board of any regional or other intergovernmental agency, or any city board. b) Appointments and Removals. Neither the city commission nor any of its members shall in any manner control or demand the appointment or removal of any city administrative officer or employee whom the city manager or any subordinate of the city manager is empowered to appoint, but the commission may express its views and fully and freely discuss with the city manager anything pertaining to appointment and removal of such officers and employees. c) Interference with Administration. Except for the purpose of inquiries, and investigations under ~2.09, the commission or its members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately. Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies. a) Vacancies. The office of a commission member shall become vacant upon the member's death, resignation, or removal from office or forfeiture of office in any manner authorized by law. If the mayor is absent, incapacitated, dies, resigns from office, or is removed from office, the deputy mayor shall succeed as mayor during said time or absence or incapacity or for the balance of the mayor's term, as appropriate; and the commission vacancy created therein shall be filled pursuant to this section. b) Forfeiture of Office. A commission member shall forfeit that office if the commission member: 1) Fails to meet the residency requirements, 2) Violates any express prohibition of this charter, 3) Is convicted of a felony, or 3-95 4) Fails to attend three consecutive regular meetings of the Commission without being excused by a majority of the Commission. c) Filling of Vacancies. A vacancy in the city commission shall be filled for the remainder of the unexpired term, pursuant to state law. Section 2.07. Judge of Qualifications. The city commission shall be the judge of the grounds for forfeiture of a member's office, pursuant to ~2.06.b. In order to exercise these powers, the commission shall have power to subpoena witnesses, administer oaths and require the production of evidence. A member charged with conduct constituting grounds for forfeiture of office shall be entitled to a public hearing on demand, and notice of such hearing shall be published in one or more newspapers of general circulation in the city pursuant to state law. Section 2.08. City Clerk. The city commission or the city manager, as designated by ordinance, shall appoint an officer of the city who shall have the title of city clerk. The city clerk shall give notice of commission meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned by this charter, by the commission or by state law. Section 2.09. Investigations. The city commission may make investigations into the affairs of the city and the conduct of any city department, office, or agency and for this purpose may subpoena witnesses, administer oaths, take testimony, and require the production of evidence. Failure or refusal to obey a lawful order issued in the exercise of these powers by the commission shall be a misdemeanor punishable pursuant to state law. Section 2.10. Procedure. The city commission shall, by ordinance, establish its rules of procedure and time and place of meetings, in accordance with state law. Section 2.11. Action Requiring an Ordinance. In addition to other acts required by law or by specific provision of this charter to be done by ordinance, those acts of the city commission shall be by ordinance which: 1) Adopt or amend an administrative code or establish, alter, or abolish any city department, office, or agency; 2) Provide for a fine or other penalty or establish a rule or regulation for violation of which a fine or other penalty is imposed; 3) Levy a new tax; 4) Grant, renew, or extend a franchise; 4-96 5) Conveyor lease or authorize the conveyance or lease of any lands of the city; 6) Adopt or amend zoning and subdivision regulations; 7) Amend or repeal any ordinance previously adopted; or 8) Adopt, with or without amendment, ordinances proposed under the initiative power. Acts other than those referred to in the preceding sentence may be done either by ordinance or by resolution. Section 2.12. Ordinances in General. Ordinances, regular, emergency, and technical regulations, will be proposed, published, and approved in accordance with state law. In addition to the requirements of state law, ordinances, administrative regulations, resolutions, and the Bozeman Municipal Code will be published electronically. ARTICLE III CITY MANAGER Section 3.01. Appointment; Qualifications; Compensation. The city commission, by a majority vote of its total membership, shall appoint a city manager for an indefinite term and fix the manager's compensation. The city manager shall be appointed solely on the basis of education and experience in the accepted competencies and practices of local government management. The manager need not be a resident of the city or state at the time of appointment, but may reside outside the city while in office only with the approval of the commission. Section 3.02. Removal. If the city manager declines to resign at the request of the city commission, the city commission may suspend the manager by a resolution approved by the majority of the total membership of the city commission. Such resolution shall set forth the reasons for suspension and proposed removal. A copy of such resolution shall be served immediately upon the city manager. The city manager shall have fifteen days in which to reply thereto in writing and, upon request, shall be afforded a public hearing, which shall occur not earlier than ten days nor later than fifteen days after such hearing is requested. After the public hearing, if one is requested, and after full consideration, the city commission, by a majority vote of its total membership, may adopt a final resolution of removal. The city manager shall continue to receive full salary until the effective date of a final resolution of removal. Section 3.03. Acting City Manager. By administrative order filed with the city clerk, the city manager shall designate a city officer or employee to exercise the powers and perform the duties of city manager during the manager's temporary absence or disability. The city commission may revoke such 5 -97 designation at any time and appoint another officer of the city to serve until the city manager returns. Section 3.04. Powers and Duties of the City Manager. The city manager shall be the chief executive officer of the city, responsible to the commission for the management of all city affairs placed in the manager's charge by or under this charter. The city manager shall: 1) Appoint and suspend or remove all city employees and appointive administrative officers provided for by or under this charter, except as otherwise provided by law, this charter, or personnel rules adopted pursuant to this charter. The city manager may authorize any administrative officer subject to the manager's direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency; 2) Direct and supervise the administration of all departments, offices, and agencies of the city, except as otherwise provided by this charter or by law; 3) Attend all city commission meetings unless excused. The city manager shall have the right to take part in discussion but shall not vote; 4) See that all laws, provisions of this charter, and acts of the city commission subject to enforcement by the city manager or by officers subject to the manager's direction and supervision are faithfully executed; 5) Prepare and submit the annual budget and multi-year capital program to the city commission for its approval, and execute the final budget approved by the commission to achieve the goals of the city; 6) Submit to the city commission and make available to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year; 7) Make such other reports as the city commission may require concerning operations; 8) Keep the city commission fully advised as to the financial condition and future needs of the city; 9) Make recommendations to the city commission concerning the affairs of the city and facilitate the work of the city commission in developing policy; 10) Provide staff support services for the mayor and commission members subject to the provisions regarding the city clerk under ~2.08; 11) Assist the commission in developing long term goals for the city and strategies to implement these goals; 12) Encourage and provide staff support for regional and intergovernmental cooperation; 13) Promote partnerships among commission, staff, and citizens in developing public policy and building a sense of community; 14) Perform such other duties as are specified in this charter or may be required by the city commission; 15) Prepare the commission agenda; and 16) Appoint members of temporary advisory committees established by the city manager or the city commission. 6-98 ARTICLE IV DEPARTMENTS, OFFICES AND AGENCIES Section 4.01. General Provisions. a) Creation of Departments. The city commiSSion may establish city departments, offices, or agencies in addition to those created by this charter and may prescribe the functions of all departments, offices, and agencies. No function assigned by this charter to a particular department, office, or agency may be discontinued or, unless this charter specifically so provides, assigned to any other. b) Direction by city manager. All departments, offices, and agencies under the direction and supervision of the city manager shall be administered by an officer appointed by and subject to the direction and supervision of the city manager. With the consent of commission, the city manager may serve as the head of one or more such departments, offices, or agencies or may appoint one person as the head of two or more of them. Section 4.02. Personnel System. Consistent with all applicable federal and state laws, all appointments and promotions of city officers and employees shall be made solely on the basis of merit and qualifications demonstrated by a valid and reliable examination or other evidence of competence. Section 4.03. Legal Officer. a) Appointment. There shall be a legal officer of the city appointed by the city manager subject to confirmation by the city commission. b) Role. The legal officer shall serve as chief legal adviser to the commission, the manager and all city departments, offices and agencies, shall represent the city in all legal proceedings, and shall perform any other duties prescribed by state law, by this charter, or by ordinance. Section 4.04. Land Use, Development, and Environmental Planning. Consistent with all applicable federal and state laws with respect to land use, development, and environmental planning, the city commission shall: 1) Designate an agency or agencies to carry out the planning function and such decision-making responsibilities as may be specified by ordinance; 2) Adopt a comprehensive plan and determine to whatextent zoning and other land use control ordinances must be consistent with the plan; 3) Determine to what extent the comprehensive plan and zoning and other land use ordinances must be consistent with regional plan(s); and 7-99 4) Adopt development regulations, to be specified by ordinance, to implement the plan. The designated agency, the city manager, and the mayor and commission shall seek to act in cooperation with other jurisdictions and organizations in their region to promote integrated approaches to regional issues. Section 4.05. Municipal Court There shall be a municipal court as prescribed by state law. Section 4.06 Neighborhood Associations a) Purpose. The citizens of Bozeman value the contribution neighborhoods can make to the governance of the city. Therefore, it is the purpose of this article to strengthen neighborhood participation where it exists, and to encourage and support neighborhood participation where it does not yet exist. b) Recognition of neighborhood associations. The city commission shall establish by ordinance minimum recognition requirements for neighborhood associations. These standards shall include, but not be limited to: 1) clear geographic boundaries; 2) procedures for defining a resident for neighborhood association membership; 3) adherence to established by-laws that ensure democratic deliberative and voting procedures; 4) periodic meetings, including an annual meeting; 5) copy of the by-laws and all amendments filed with the city; 6) inclusion of all residents in the neighborhood association; and 7) demonstrating that it has a means of communicating with all residents in a neighborhood association. c) Minimum Standards. A neighborhood association must meet and continue to maintain conformity with the minimum standards as established by ordinance in order to be recognized by the city and to be eligible to elect members to the InterNeighborhood Council. Neighborhood associations existing on the date of the enactment of this charter shall have one year after the enactment of said city ordinance to come into compliance. d) InterNeighborhood Council. There is hereby established an I nterNeighborhood Council to be composed of representatives selected by each recognized neighborhood association. . 1) The InterNeighborhood Council shall provide a forum for Neighborhood Associations to come together, share information, and make recommendations to the city commission, city staff, and the mayor on city-wide issues. This does not preclude a 8-100 neighborhood association from taking its concerns directly to the city or the commission. 2) The InterNeighborhood Council shall meet on a regular basis to address city-wide concerns and foster dialogue between neighborhoods. 3) The InterNeighborhood Council shall adopt by-laws governing the conduct of their business. Such by-laws shall be approved by the city commission, or as designated by ordinance. A vacancy on the InterNeighborhood Council shall be filled only by the affected neighborhood association. The city may appoint a city commissioner as a non-voting member of the InterNeighborhood Council. e) City Liaison. The City shall designate a staff member to serve as liaison to the InterNeighborhood Council and neighborhood associations. Section 4.07. City Boards, Commissions and Committees. Except for boards and commissions established by statute, the commission may create boards, commissions, or committees as determined necessary. All city boards, commissions, or committees will be established by the city commission and members appointed by the commission and the mayor, when so required by law, following a public solicitation through the newspaper advertised not less than twice annually. Between public solicitations for members, appointments may be made to fill unexpected vacancies or vacancies not filled through the last round of advertisements from those applications on file as of the date of appointment. Subcommittees of existing boards, commissions, or committees may be appointed by the city commission without the necessity of public solicitation. The commission may authorize the city manager to establish ad hoc special commissions for specific purposes without public advertisement. Except where prohibited by law, the terms on all boards shall be staggered. ARTICLE V FINANCIAL MANAGEMENT Section 5.01. Fiscal Year. The fiscal year of the city shall begin on the first day of July and end on the last day of June, or as otherwise provided by state law. Section 5.02. Submission of Budgets and Budget Message. The city manager shall submit to the city commission a preliminary budget for the ensuing fiscal year and an accompanying message and a final budget, both in a timely manner. The publication requirements must conform to the provisions of state law for a municipality and be available electronically. 9-101 Section 5.03. Budget Message. The city manager's message shall explain the budget both in fiscal terms and in terms of the work programs, linking those programs to organizational goals and community priorities. It shall outline the proposed financial policies of the city for the ensuing fiscal year and the impact of those policies on future years. It shall describe the important features of the budget; indicate any major changes from the current year in financial policies, expenditures, and revenues together with the reasons for such changes; summarize the city's debt position, including factors affecting the ability to raise resources through debt issues; and include such other material as the city manager deems desirable. Section 5.04. Budget. a) Statutory Provisions. The preliminary annual operating budget, the final budget, and amended budgets must be prepared in accordance with state laws governing municipal budgets as then in effect. b) Unreserved Fund Balance. A minimum level of budgeted general fund unreserved fund balance shall be established by ordinance and shall be in accordance with the GFOA (Government Finance Officers Association) recommended practice on appropriate levels of unreserved fund balance in the general fund. This provision does not limit appropriations in case of emergency pursuant to state law. Section 5.05. Adjusting Appropriations. a) Reduction of Appropriations. In addition to the requirements of state law, if at any time during the fiscal year it appears probable to the city manager that the revenues or fund balances available will be insufficient to finance the expenditures forwhich appropriations have been authorized, the manager shall report to the city commission without delay, indicating the estimated amount of the deficit, any remedial action taken by the manager, and recommendations as to any other steps to be taken. The commission shall then take such further action as it deems necessary to prevent or reduce any deficit and, for that purpose, it may by ordinance reduce or eliminate one or more appropriations. b) Transfer of Appropriations. In addition to the requirements of state law, at any time during or before the fiscal year, the city commission may by resolution transfer part or all of the unencumbered appropriation balance from one department, fund, service, or organizational unit to the appropriation for other departments or organizational units or a new appropriation as provided by state law. The city manager may transfer funds among programs within a department, fund, service, or organizational unit and shall report such transfers to the commission in writing in a timely manner. c) Limitation; Effective Date. In addition to the requirements of state law, no appropriation for debt service may be reduced or transferred, except to the extent that the debt is refinanced and less debt service is required, and no 10-102 appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer of appropriations authorized by this section may be made effective immediately upon adoption. Section 5.06. Administration and Fiduciary Oversight of the Budget. The city commission shall provide by ordinance the procedures for administration and fiduciary oversight of the budget. Section 5.07. Capital Program. a) Submission to City Commission. The city manager shall prepare and submit to the city commission a multi-year capital program no later than December 15 for the ensuing fiscal year. b) Contents. The capital program shall include: 1) A clear general summary of its contents; 2) Identification of the long-term goals of the community; 3) A list of all capital improvements and other capital expenditures which are proposed to be undertaken during the fiscal years next ensuing, with appropriate supporting information as to the necessity for each; 4) Cost estimates and recommended time schedules for each improvement or other capital expenditure; 5) Method of financing upon which each capital expenditure is to be reliant; 6) The estimated annual cost of operating and maintaining the facilities to be constructed or acquired; 7) A commentary on how the plan addresses the sustainability of the community and the region of which it is a part; and 8) Methods to measure outcomes and performance of the capital plan related to the long-term goals of the community. The above shall be revised and extended each year with regard to capital improvements still pending or in process of construction or acquisition. Section 5.08. City Commission Action on Capital Program. a) Notice and Hearing. The city commission shall publish the general summary of the capital program and a notice stating: 1) The times and places where copies of the capital program are available for inspection by the public, and 2) The time and place, not less than two weeks after such publication, for a public hearing on the capital program. 11 -103 b) Adoption. The city commission by resolution shall adopt the capital program for the ensuing fiscal year, with or without amendment after the public hearing, but no later than the last day of March of the current fiscal year. Section 5.09 Independent Audit. The city commission shall provide for an independent annual audit of all city accounts in accordance with state law and may provide for more frequent audits as it deems necessary. No accountant or firm may provide any other services to the city during the time it is retained to provide independent audits to the city, however, the city commission may waive this requirement by a majority vote at a public meeting. ARTICLE VI ELECTIONS Section 6.01. City Elections. a) Regular Elections. Regular city elections shall be held and administered in odd numbered years, pursuant to state law. Candidates shall run for office without party designation. b) Beginning of term. The terms of new commission members shall start at the beginning of the first regularly scheduled meeting in January after their election. Section 6.02. Methods of Electing Commission Members. At the first election under this charter, commission members shall be elected at large for four-year terms. The mayor shall be elected pursuant to ~2.03(b). Section 6.03. Initiative; Citizen Referendum, and Recall. The powers of initiative, citizen referendum, and recall are hereby reserved to the electors of the city as provided by state law. In verifying petitions for initiatives and referendums, the percentage of signatures required under state law shall be reduced in proportion to the number of inactive registered voters as most recently certified by the county election administrator pursuant to state law. ARTICLE VII GENERAL PROVISIONS Section 7.01. Conflicts of Interest; Board of Ethics. a) Conflicts of Interest. The use of public office for private gain is prohibited. The city commission shall implement this prohibition by ordinance, the terms 12 -104 of which shall include, but not be limited to: acting in an official capacity on matters in which the official has a private financial interest clearly separate from that of the general public, the acceptance of gifts and other things of value, acting in a private capacity on matters dealt with as a public official, the use of confidential information, and appearances by city officials before other city agencies on behalf of private interests. This ordinance shall include a statement of purpose and shall provide for reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters and, . insofar as permissible under state law, shall provide for fines and imprisonment for violations. b) Board of Ethics. The city commission shall, by ordinance, establish an independent board of ethics pursuant to state law. The city commission shall appropriate sufficient funds to the city manager to provide annual training and education of city officials, city boards, and employees regarding the state and city ethics codes. City officials, board members, and employees shall take an oath to uphold the state and city ethics codes. Section 7.02. Campaign Finance. In order to combat the potential for, and appearance of, corruption and to preserve the ability of all qualified citizens to run for public office, the city shall, insofar as is permitted by state and federal law, have the authority to enact ordinances designed to limit contributions and expenditures by candidates for locally elected office. Ordinances pursuant to this section may include, but are not limited to: limitations on candidate and candidate committees that affect the amount, time, place, and source of financial and in-kind contributions; and voluntary limitations on candidate and candidate committee expenditures tied to financial or non-financial incentives. ARTICLE VIII CHARTER AMENDMENT Section 8.01 Proposal of Amendment. Amendments to this charter may be framed and proposed: 1) In the manner provided by state law, or 2) By ordinance of the commission containing the full text of the proposed amendment, or 3) By report of a study commission created pursuant to state law, or 4) By the voters of the city. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by the same procedures and requirements prescribed in Article VI for initiative petitions until such time as a final determination as to the sufficiency of the petition is made, except that there shall be no limitation as to subject matter and that the petition must be signed by registered voters of the 13-105 city equal to that required by state law. In verifying petitions, the percentage of required signatures shall be reduced pursuant to Section 6.03, above. Section 8.02. Election. Upon delivery to the election authorities of the report of a charter commission or delivery by the city clerk of an adopted ordinance or a petition finally determined sufficient, proposing an amendment pursuant to ~8.01, or as otherwise provided by state law, the election authorities shall submit the proposed amendment to the voters of the city at an election, pursuant to state law. Section 8.03. Adoption of Amendment. If a majority of those voting upon a proposed charter amendment vote in favor of it, the amendment shall become effective at the time fixed in the amendment or, if no time is therein fixed, 30 days after its adoption by the voters. ARTICLE IX TRANSITION AND SEVERABILITY Section 9.01. Officers, Employees and Elected Officials. a) Rights and Privileges Preserved. Nothing in this charter except as otherwise specifically provided, shall affect or impair the rights or privileges of persons who are city officers or employees at the time of its adoption. b) Continuance of Office or Employment. Except as specifically provided by this charter if, at the time this charter takes full effect, a city administrative officer or employee holds any office or position which is or can be abolished by or under this charter, he or she shall continue in such office or position until the taking effect of some specific provision under this charter directing that he or she vacate the office or position. Elected officials serving at the time this charter is approved by the voters shall continue in office for the balance of their term. c) Personnel System. An employee holding a city position at the time this charter takes full effect, who was serving in that same or a comparable position at the time of its adoption, shall not be subject to competitive tests as a condition of continuance in the same position but in all other respects shall be subject to the personnel system provided for in ~4.02. Section 9.02. Pending Matters. All rights, claims, actions, orders, contracts, and legal administrative proceedings shall continue except as modified pursuant to the provisions of this charter and in each case shall 14-106 be maintained, carried on, or dealt with by the city department, office, or agency appropriate under this charter. Section 9.03. State and Municipal Laws. All city ordinances, resolutions, orders, and regulations in force when this charter becomes fully effective shall be updated to conform with this charter pursuant to state law. Any ordinance or resolution required to be established pursuant to this charter shall be completed as required by state law. Section 9.04. Schedule. a) Mayor Election. Section 2.03(b) shall take effect with the 2007 city election, with said mayor being seated after serving as deputy mayor at the beginning of the first commission meeting in January, 2010. b) Referendum on Increasing the Commission. At the general election in 2010, the city commission shall place before the voters, with conforming charter amendments, the issue of adding two members to the city commission. Should the voters approve said increase, said commission members shall be elected during the regular city election in 2011 and seated at the first regular commission meeting in January 2012. c) Time of Taking Full Effect. The charter shall be in full effect for all purposes pursuant to the schedule established by state law. Section 9.05. Severability. If any provision of this charter is held invalid, the other provisions of the charter shall not be affected. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application ofthe charter and its provisions to other persons or circumstances shall not be affected. This charter was proposed by the City of Bozeman's 2004-2006 Local Government Study Commission and was approved by the voters at the November 7,2006, general election. Section 2.03(b) of the charter becomes effective with the 2007 election; all other sections become effective on January 1, 2008. 15 -107     W.T. BOONE (1910-1984) KARL R. KARLBERG (1923-1988) JAMES J. BENN (1944-1992) THOMAS H. BOONE, of Counsel WILLIAM L. CROWLEY RANDY J. COX, of Counsel ROBERT J. SULLIVAN DEAN A. STENSLAND CYNTHIA K. THIEL ROSS D. TILLMAN JAMES A. BOWDITCH MATTHEW B. HAYHURST SCOTT M. STEARNS NATASHA PRINZING JONES THOMAS J. LEONARD JULIE R. SIRRS TRACEY NEIGHBOR JOHNSON CHRISTOPHER L. DECKER ZACHARY A. FRANZ TYLER M. STOCKTON ALISON R. POTTS WILLIAM T. CASEY REBECCA L. STURSBERG CINDY L. WALKER, of Counsel January 7, 2022 by e-mail & personal service City of Bozeman Board of Ethics c/o Office of the City Clerk 121 North Rouse | P.O Box 1230 Bozeman, MT 59771-1230 Re: Response to Zyvoloski December 8, 2021, Code of Ethics Complaint Dear Members of the Board of Ethics: Pursuant to Bozeman Municipal Code (“BMC”) § 2.03.640(H), the following response is offered to the Board of Ethics on behalf Bozeman City Attorney Greg Sullivan and Bozeman Assistant City Attorney Kelley Rischke. Despite claiming this Complaint does not concern the “merits of the daycare licensing decision,” this Complaint is indeed a response to proper and appropriate actions taken by Ms. Rischke, Mr. Sullivan, the Bozeman City Commission, and other City of Bozeman employees and officials (collectively referred to as “Bozeman”). In response to Mr. Zyvoloski’s (“Complainant”) original complaint about a day care in his neighborhood, Bozeman properly investigated Complainant’s issues, reviewed applicable BMC sections and other applicable law, addressed the issues, and adopted an administrative rule necessary to both (1) comply with state law; and (2) address Complainant’s issue. Dissatisfied with the outcome, Complainant now raises ethical allegations against Bozeman. As explained below, Bozeman committed no wrong and violated no aspect of the Bozeman Code of Ethics or the Montana Code of Ethics. The Board should dismiss the Complaint with prejudice. I. Procedural background. As detailed below, Complainant’s dispute began when he sought to have Bozeman force a day care in his neighborhood to obtain a business license. Bozeman initially disagreed, concluding day care businesses did not need business licenses, and Complainant filed his First Appeal. During the course of the First Appeal, Bozeman 108 Board of Ethics January 7, 2022 Page 2   reevaluated Complainant’s argument and adopted Administrative Rule 2021-01 to address day care business licensing. Bozeman then requested the day care at issue apply for a business license in compliance with the newly adopted rule. Complainant then filed his Second Appeal, this time alleging Bozeman had improperly granted the day care a business license and challenging Bozeman’s interpretation of the BMC, state law, and the adoption of the new administrative rule. The Bozeman City Commission considered Complainant’s arguments on December 14, 2021, and voted 5-0 to uphold the interpretation of the BMC, state law, adoption of Administrative Rule 2021-01, and granting the business license to the day care. Dissatisfied with the process, Complainant filed the instant Ethics Complaint on December 8, 2021. Complainant filed a supplement to his Ethics Complaint on December 20, 2021, providing additional information. II. Background. Last July, Complainant submitted a public comment asking the Commission consider and discuss revising the City’s zoning regulations regarding in home day care operations.1 (Letter from D. Zyvoloski to City Comm. (July 2, 2021), Exhibit A.) Complainant admitted “[c]urrently, all dwellings or households in any zoning district are allowed to operate a Group Day Care Home with 12 children without any notice to neighbors or permits issued by the [C]ity of Bozeman.” (Id.) However, he requested the Commission consider allowing public participation in any effort to revise the code, so residents could “have a voice in that purpose [sic].” (Id.) There is always an opportunity for public involvement and comment every time the City Commission considers amendments to the BMC, however, the Commission has not taken up Complainant’s request to amend the code. On August 31, Complainant through his legal counsel, Lara Guercio, filed a single, formal complaint against the day care, claiming that it “has been operating for several months now from this location without a business license.” (Letter from. L. Guercio to M. Matsen (Aug. 31, 2021), Exhibit B (emphasis added).) Ms. Guercio argued “[f]rom the text of the [BMC] and applicable state law, the subject group day care is clearly not exempt from local business license requirements.” (Id. (emphasis original).) Complainant sought a sole remedy: “we . . . request that an investigation of this violation and appropriate action be taken under Chapter 12 of the Code.” (Id. (emphasis added).)                                                              1 There is various licensing for different sized day care operations. The only size at issue in this situation are family and group day cares, which are often operated from residential dwellings. All references to “day care business” or “day care operation” are referring to these two types, not the larger “day-care center” as defined by Montana Code Annotated. 109 Board of Ethics January 7, 2022 Page 3   As requested, Bozeman investigated what Ms. Guercio alleged was a violation of BMC—not requiring group day care businesses to obtain business licenses—and concluded it was, in fact, not a violation. (Letter from M. Matsen to L. Guercio (September 21, 2021 Exhibit C.) First, Bozeman noted the applicable state statute explicitly provided that “family” and “group” day care operations “are a permitted use in all residential zones” and it also barred Bozeman from “requir[ing] a conditional use permit in order to maintain a day-care home registered by the department of public health and human services.” See Mont. Code Ann. § 76–2–412(4). Any BMC provision in conflict with that statute was, thus, invalid. Second, in response to the alleged violation, Bozeman concluded that group day care businesses were exempt from needing a business license under the BMC, given the regulatory control exercised by the Montana DPHHS (day care operations have to be registered with the state and, through that registration, go through various state regulatory hurdles). See BMC § 12.01.010.A.1 (defining “business” as not including those “exempted by state law or this chapter”). Complainant, through Ms. Guercio, disagreed with Bozeman’s analysis. On September 30, 2021, Ms. Guercio stated Complainant would file an appeal of Bozeman’s decision, unless “the City can reference a clearly applicable existing exemption in state law or the BMC.” (Letter from L. Guercio to M. Matsen (Sept 30, 2021), Exhibit D.) In short, Complainant argued the day care in question should be required to obtain a business license. (Id.) Complainant filed an appeal of Bozeman’s decision on October 6, making the same arguments (hereinafter “First Appeal”). (Letter from L. Guercio to City of Bozeman (October 6, 2021), Exhibit E.) In response to Complainant’s letter and appeal, Bozeman reevaluated its long- standing policy that day care businesses did not require a business licenses due to state regulation and adopted Administrative Rule 2021-01 on October 13, 2021, which applied to all day care operations in Bozeman. (Admin. R. 2021-01 (Oct. 13, 2021), Exhibit F.) Administrative Rule 2021-01 balanced the terms of BMC and state law, as well as the City’s traditional approach to day care businesses. However, to be compliant with state law requiring cities allow day care businesses as residential uses, the BMC allowing day care businesses as residential uses, and in light of significant state oversight of day cares by DPHHS, Bozeman determined that additional inspections by the City were generally unwarranted and that the administrative costs of implementing the new rule were minimal. Thus, Bozeman elected to waive licensing fees. (Id.) Bozeman’s interpretation of state law complied with an earlier Montana Attorney General Advisory Opinion issued in 1993, where the Department of Commerce asked if it could issue building code standards for day care operations given the text § 76–2–412(3). The Attorney General concluded it could not, finding: 110 Board of Ethics January 7, 2022 Page 4   The legislative history discloses that the imposition of health and safety regulations on smaller home-care facilities was inconsistent with the intent to retain an atmosphere of traditional family homes. The statute was amended in 1974 with the clear purpose of having these facilities treated simply as residential occupancies and excluding them from all safety or sanitary regulations which did not apply to residential occupancies. The statutory language is clear in expressly exempting these facilities from health and safety regulations, which include state building codes. Thus, any attempt to apply the state building codes to such facilities would be contrary to the plain language of the statute. Based on the clear language of the statute, I conclude that the Legislature intended by this enactment to exclude smaller home-care and day-care facilities from compliance with all state building regulations which are not applicable to residential occupancies. Mont. Att’y Gen. Op. 93-03, 1993 Mont. AG LEXIS 24 (Apr. 8, 1993) (emphasis added). The same day Administrative Rule 2021-01 was adopted, Ms. Rischke contacted the day care that had been the genesis of Complainant’s complaint and requested the owner/operator fill out an application for a business license, but instructed her to do so pursuant to the terms of Administrative Rule 2021-01, noting that the form had not been updated yet to reflect the new administrative rule. The day care followed those instructions and made one (common) ministerial error by forgetting to note the zoning district. The City worked with the day care to rectify the ministerial error and issued the business license to the day care that same day. After the business license had been issued, Ms. Rischke informed the Complainant that a business license had been issued and provided a copy. Complainant’s entire initial complaint—that the day care obtain a business license—was resolved in Complainant’s favor. Complainant had requested Bozeman “investigat[e]” the alleged violation and take “appropriate action.” (Ex. B.) Bozeman did just that. It investigated the matter, adopted a new administrative rule considering the unique circumstances and state law requirements regarding day care businesses, and required that day care businesses get a business license. The City took “appropriate action” to ensure the day care in question obtained a business license, just as Complainant argued it should. Complainant then disagreed with Bozeman’s issuance of the business license and appealed the determination on October 27, 2021 (hereinafter “Second Appeal”). (Letter 111 Board of Ethics January 7, 2022 Page 5   from D. Zyvoloski to Bozeman (Oct. 27, 2021), Exhibit G.) He argued that day care businesses not only needed business licenses, but, if operated in the home, such as family and group day care operations often are, they also must select “Home Based Business” on the form and, thus, also must comply with the special use or conditional use permit process in Chapter 38 (not the business license section). (Id. at 2.) However, such an action would violate state law and effectively close all, or nearly all, group and family day care operations in the City of Bozeman. Complainant’s appeal was heard before the Bozeman City Commission on December 14, 2021. City staff explained the rationale behind its responses to Complainant, the adoption of Administrative Rule 2021-01, and the business license issued to the day care in question. City staff further explained state regulations applicable to day cares, the interplay between state and local regulations, the oversight of day cares by DPHHS and the limitations imposed by state law on local regulation. (See Bozeman City Comm. Mtg. at 1:43:15 (Dec. 14, 2021), available at https://bozeman.granicus.com/player/clip/203; see also Rischke PowerPoint Presentation, Exhibit H.) Complainant and his legal counsel laid out why they believed Bozeman had acted improperly and incorrectly. Based on a complete record, the City Commission voted 5-0 to ratify the actions of the City staff, including the adoption of Administrative Rule 2021-01 and the proper issuance of the business license to the day care in question. III. Argument. Complainant alleges that Mr. Sullivan, Ms. Rischke, and others “deviated from the City’s Standards of Conduct, created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions . . . by their procedural misconduct in connection with the disputed licensing of a home-based daycare in violation of the BMC.” (Compl. at 1.) The Complaint only makes broad conclusory statements to support his allegations and provides no specific facts or argument as to what actions constituted what violations. Essentially, the Complainant relays the timeline of events from his perspective, and then claims those actions generally violated the Standards of Conduct, created Conflicts of Interest, and constituted Improper Government Actions. Given the vagueness of the allegations, Bozeman’s response is structured based on the alleged BMC or Montana Code violations. A. No due process rights were implicated or violated by Bozeman’s resolution of the complaint. Using the term “due process” generically, Complainant makes multiple allegations founded upon a mistaken belief that while he had an appeal pending, Bozeman had an obligation to variously not act to address his concerns, tell him about the actions being 112 Board of Ethics January 7, 2022 Page 6   taken, and/or not communicate with the day care at issue. (Compl. at 2—3.) Complainant also raises allegations regarding the involvement of Ms. Rischke and other City staff regarding the Second Appeal, alleging the City Clerk was to only act “ministerial[ly]” to schedule and setup the Second Appeal. Contrary to Complainant’s assertions, the appeal process is dictated exclusively by the BMC. The BMC appeal process in no way restricted Bozeman nor provided Complainant the alleged “due process” rights he claims. Bozeman acted properly and in full compliance with the BMC. Complainant’s initial complaint was that a specific day care business in his neighborhood did not have a business license and should be required to obtain one. Complainant disagreed with Bozeman’s initial conclusion that day care businesses did not need a business license under Chapter 12 of the BMC and appealed the decision. Later, when a business license was required and obtained, Complainant appealed the issuance of that business license. Both appeals fall under Section 12.02.190, BMC, which provides in full: A. Right of appeal. Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission by filing a written appeal with the city clerk within 20 days following the effective date of the action taken or the decision made. B. Contents of appeal. Such appeal shall set out a copy of the order or decision appealed and shall include a statement of the facts relied upon to avoid such action taken or decision made. C. Notification of city manager. At the time of filing any such appeal a copy thereof shall be filed by the appellant with the city manager. D. Hearing. The city commission shall fix a time and place for hearing the appeal and shall personally serve a written notice, as provided herein, upon the appellant informing the appellant thereof. The city commission shall also give such notice to the city manager and such officer shall be entitled to appear and defend such action taken or decision made. E. Effect of decision. The findings of the city commission shall be final and conclusive and shall be personally served upon the appellant as required herein. (Emphasis added.) Unlike other situations where “due process” rights can be substantial (i.e., a criminal defendant’s constitutional rights), Complainant’s “rights” regarding the 113 Board of Ethics January 7, 2022 Page 7   business licensing appeals are found only in Section 12.02.190, BMC. The right to appeal a decision in a hearing before the City Commission is the only due process afforded by the code and Complainant exercised the totality of those rights through his and his counsel’s full participation in an appeal hearing before the City Commission on December 14, 2021. First, there are no provisions that provide some form of “due process” right to someone “aggrieved by any decision of the city manager” such that Bozeman is barred from taking further action to resolve the complaint, amend administrative regulations, or take other actions to otherwise fix or resolve the situation. Complainant’s position appears to be that if any citizen appeals government action, the wheels of government must freeze. Without any legal authority, Complainant contends Bozeman could not review its legal position, nor could the City adopt administrative rules, make changes to its processes and procedures, enforce its new regulations, or otherwise change anything until the appeal was resolved. There simply is no prohibition on any of those actions in the BMC, or under any other law or regulation. Rather, the City Manager, through the “program administrator” for business licenses, has explicit power at all times to “promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter” and “adopt all forms” for business licensing as necessary. BMC § 12.02.050(A). Bozeman exercised its express authority provided by the BMC. There was no obligation to pause all regulatory review, revisions, or other work under the BMC during an appeal or keep the alleged “aggrieved” person informed of every action being taken. Second, the involvement of Ms. Rischke (and other Bozeman employees) in the Second Appeal was explicitly permitted by Chapter 12, which provides that “the city commission shall also give such notice to the city manager and such officer shall be entitled to appear and defend such action taken or decision made.” BMC § 12.02.190(E). City employees involved in scheduling or arranging the appeal and hearing before the Commission has no impact or bearing on the outcome of the hearing and Bozeman is explicitly granted a right to defend its actions and decisions. Finally, Complainant received extensive “due process” during both of his appeals. After Complainant’s First Appeal, Bozeman evaluated the appeal, adopted reasonable regulations, and granted his relief. Then, after his Second Appeal, the City Commission scheduled a public hearing, considered Complainant’s concerns, allowed Complainant and his attorney to present additional testimony and argument, heard public comment on the matter, deliberated, and resolved the appeal. Bozeman went above and beyond to address Complainant’s issues, providing all “due process” required by BMC. 114 Board of Ethics January 7, 2022 Page 8   Given the above, the Board should dismiss any “due process” claims with prejudice for failure to allege a legally possible violation. B. No alleged facts constitute a “conflict of interest” under the Bozeman Code of Ethics. Complainant alleges Mr. Sullivan, Ms. Rischke, and other Bozeman employees created a conflict of interest under the BMC Code of Ethics by asking the day care to fill out a business license application, assisting the day care to correct a ministerial error on the form, adopting and enforcing Administrative Rule 2021-01, and being involved in the Second Appeal. (Compl. at 2–3, 5.) None of these actions constitute a Conflict of Interest. As it pertains to this Complaint, the BMC Code of Ethics bars the following “conflicts of interest”: No official or employee shall engage in any employment or business which conflicts with the proper discharge of such official or employee’s duties. No official or employee shall take or influence official action if the official or employee has a financial or personal interest in a transaction or matter with the city. BMC § 2.03.520(B), (C).2 “Financial interest” is defined as “any ownership interest, contractual relationship, business relationship, or other interest which will result in a monetary or other material benefit to any official or employee.” BMC § 2.03.470(A)(6) (emphasis added). A “personal interest” is “any interest in the matter which would affect the action of the official or employee other than a financial interest.” BMC § 2.03.470(A)(10). Here, Complainant does not allege—in any way—that Ms. Rischke, Mr. Sullivan, or anyone else within Bozeman had a personal or financial interest in relation to the day care. At best, Complainant alleges that Ms. Rischke’s actions were “to protect the personal and/or financial interest of the day care business.” (Compl. at 2 (emphasis added).) Even assuming that was true (and it is not), that would not be a conflict of interest under the BMC Code of Ethics. The allegation must be that the “official or employee” has the conflict of interest, not that an action done by the City benefits or aids an entity. Helping a business fill out a business license application, drafting and working on an administrative rule, and being involved in an appeal simply cannot be considered a conflict of interest                                                              2 The remaining “conflicts of interest” relate to if an employee has a personal or financial interest or if an employee represents or appears on behalf of an individual or entity before a City agency or in a transaction. There is no question those situations are not at issue in this proceeding. 115 Board of Ethics January 7, 2022 Page 9   under any standard. Indeed, if one accepted Complainant’s argument, granting any entity a business license could be considered financially helping that business, because it allows them to conduct business. Such an interpretation is absurd. Complainant does not allege that Ms. Rischke or Mr. Sullivan or any Bozeman employee or official involved had a financial or personal interest in this situation and in fact, none does. As such, the Board should dismiss any claims relating to a “conflict of interest” with prejudice. C. No alleged facts constitute a violation of the Standards of Conduct. Complainant makes general allegations that, broadly, Bozeman’s actions in regard to the First Appeal, resolving the First Appeal, helping the day care obtain a business license, and adopting Administrative Rule 2021-01 demonstrated “favoritism, partiality and bias” and, as such, “plainly violates the City’s Standard of Conduct, including for impartial and fair conduct.” (Compl. at 2–3.) Complainant misunderstands what occurred and what the Standards of Conduct prohibit. The Board should dismiss Complainant’s allegations regarding a breach of the Standards of Conduct with prejudice. The BMC Code of Ethics sets forth the following Standards of Conduct:3 A. Officials and employees have an obligation to act morally and honestly in discharging their responsibilities. B. Officials and employees shall conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintaining high standards of conduct. . . . D. No official or employee shall improperly use, directly or indirectly, the official or employee's city position to secure any financial interest or personal interest for said official employee, or others. E. No official or employee shall, for any reason, use or attempt to use the official or employee's position to improperly influence any other official or employee in the performance of such official or employee’s official duties. BMC § 2.03.490. Bozeman did not violate or deviate from these Standards of Conduct in any manner.                                                              3 Complainant’s allegations do not implicate subsections C (devoting time to work on multimember agency issues), F (acting in a private capacity on employment-related issues), G (acting in a private capacity on matters acted upon as an official), and I (retaliation). As such they will not be discussed further. Allegations regarding subsection H are addressed below. 116 Board of Ethics January 7, 2022 Page 10   First, Bozeman did not violate the Standards of Conduct as it pertains generally to the decision to require a business license for day care businesses and adopting Administrative Rule 2021-01. Complainant originally claimed that the day care in question should be required to get a business license and asked Bozeman to investigate and situation and address it. (Ex. B.) Initially, Bozeman disagreed with Complainant and then, upon reexamination of the business licensing code, elected to change its policy and require that day care businesses obtain a business license. However, making that decision also required Bozeman to reexamine the business licensing requirements and other applicable statutes and, in particular, Montana law. Bozeman realized that in order to accede to Complainant’s request and require all day care operations to obtain a business license, they would need to revise their form and adopt a new Administrative Rule to address the unique position of day care businesses and the unique provisions of state law that applied to all day care businesses. Those actions are not devious, deceptive, unfair, partial, or biased. Indeed, Bozeman did precisely what it was supposed to do. Bozeman was alerted to an issue, examined the issue, and took the appropriate administrative steps to revise the applicable rules. The revised rules apply equally to all day care businesses and no partiality or favoritism was paid to Complainant’s neighboring day care business. The Bozeman Commission endorsed what Bozeman did in a 5-0 vote after hearing all of Complainant’s objections. Complainant may not like the outcome, but that does not mean Bozeman acted immorally, dishonestly, or with impropriety. Second, Bozeman did not violate the Standards of Conduct as it pertains to its interactions with the day care. Complainant makes much of the emails and phone calls made between Ms. Rischke and the day care operator on October 13. (See Supp. Compl. at 2.) Ms. Rischke was doing precisely what Complainant had asked Bozeman to do: require the day care to get a business license. Bozeman determined that day care businesses should get business licenses, but that the form needed to be revised to address specific state statutes regarding day care operations. Ms. Rischke contacted the day care in question and requested it fill out a business license application pursuant to the new administrative rule. This was not improper, nor was it showing some form of partiality. Bozeman discharged its duties in requiring day care businesses to obtain a business license, in particular the day care that was the subject of a complaint, and in doing precisely what Complainant requested. Instead, Complainant wanted Bozeman to conclude day care businesses needed a business license and then subject such day care operations to the Chapter 38 development code requirements regarding home-based businesses and special or conditional use permits. Such an interpretation would have been contrary to other portions of the BMC (for example, R1 zoning classifying group and family day cares as residential uses) and Montana law (discussed supra). It also would have closed all, or nearly all, of the family and group day cares in Bozeman. Bozeman’s refusal to contradict state law and craft a 117 Board of Ethics January 7, 2022 Page 11   solution that both addresses Complainant’s complaint and complies with state law does not constitute a violation of any Standard of Conduct. Third, as discussed in the Conflict of Interest section above, no employee improperly used his or her position to advance a personal or financial interest, directly or indirectly. Indeed, no employee had, nor did they obtain through or after this process, a financial or personal interest in the day care. Complainant’s allegations are completely unsupported as to a violation of section D of the Standards of Conduct. Finally, there was no “improper influence” exerted by Bozeman on any employees or officials. BMC § 2.03.490(E). Complainant makes only bare allegations that such influence occurred, but there are no specific actions cited, nor could there be. Complainant filed a complaint, it was investigated, an administrative rule resolving Complainant’s issues was drafted and adopted, the relief Complainant sought was provided, and then all of Bozeman’s actions were reviewed by the City Commission and approved by a 5-0 vote. No improper influence was exerted by Bozeman doing what it was supposed to do: investigate and resolve a citizen’s complaint. D. No alleged facts constitute a violation of the Montana Code of Ethics. Complainant alleges that this situation violated the Montana Code of Ethics, which is incorporated into Bozeman’s Code of Ethics by subsection (h) in the Standards of Conduct. In particular, Complainant alleges Bozeman violated the provision regarding the “public trust” and cites the statute providing that “public employees shall carry out the individual’s duties for the benefit of the people of the state.” (Compl. at 4–5.) Complainant does not identify which specific actions violated the Montana Code of Ethics, nor does he identify how Bozeman’s actions are contrary to the benefit of the people of the state. Further, Complainant fails to cite any particular ethical conduct or statutory provisions that were violated. First, given this failure to identify either an action or a specific statutory provision that was violated, there cannot be a violation. Montana law clearly defines what violating the “public trust” means in later sections of Title 2, Chapter 2, Montana Code Annotated. Complainant cannot generically claim violations without identifying what they may be. See BMC § 2.03.640(B) (requiring ethics complaints “specify the provisions” alleged to have been violated). As such, the Board must dismiss with prejudice the generic claims that Bozeman violated the Montana Code of Ethics. Second, even if Complainant had identified specific violations, Bozeman did not violate any aspect of the Montana Code of Ethics. Montana’s Code of Ethics applies in various ways to public officers, employees, and legislators. At issue here are the actions of Mr. Sullivan, Ms. Rischke, and other Bozeman employees, thus, the specific provisions of 118 Board of Ethics January 7, 2022 Page 12   Title 2, Chapter 2, Montana Code Annotated, regarding “public employees” are the only statutes at issue. A “public employee” violates their “public duty” when they breach Montana Code Annotated §§ 2–2–104, –105, or –121. Section –104 bars public employees from disclosing confidential information and accepting improper gifts. There are no allegations that Bozeman mishandled confidential information or accepted improper gifts; therefore, there cannot legally be a violation of Section –104. Section –105 bars acquiring an economic interest in a business impacted by a public employee’s official actions, taking employment following public employment in certain situations, having a personal interest4 in the outcome of rulemaking or action by a judicial/quasi-judicial body, or taking actions to benefit one entity where the public employee has an interest in a competing entity. Like Section –104, the complaint is devoid of specific allegations that could possibly give rise to a plausible assertion that Section – 105 was violated. There are no allegations that Bozeman had a personal interest in the outcome of adopting Administrative Rule 2021-01, or that Bozeman employees were planning to accept employment in the day care at issue. Similarly, there are no allegations that Bozeman employees had an interest in competing day care entities. As such, there legally cannot be a violation of Section –105. Finally, Section –121 bars public employees from using public time, equipment, etc. for personal businesses, engaging in a financial transaction with an entity regulated by the employee, assisting—for a fee or contingent fee—someone in getting a license or other contract or claim, performing an act that confers a substantial economic benefit on an entity the employee has a financial interest in, and soliciting employment with an entity the employee regulates. Like the prior code sections, the allegations in this Complaint do not implicate any of these proscribed actions. Bozeman is not alleged to, nor has it, used official resources for personal business, entering into financial transactions with the day care at issue, etc. As such, there cannot legally be a violation of Section –121. Given Complainant’s failure to identify a violation, as well as no allegations that could be considered a violation of the Montana Code of Ethics, the Board should dismiss any claim that Bozeman violated the Montana Code of Ethics and subsection (h) of the BMC Standards of Conduct.                                                              4 “Personal interest” is defined as ownership, creditor, employment or prospective employment, or other like situations. See Mont. Code Ann. § 2–2–102(6). 119 Board of Ethics January 7, 2022 Page 13   E. Bozeman committed no Improper Government Action. Complainant broadly alleges, again without providing specific support for those allegations, that the various actions outlined in his Complaint constituted Improper Government Action. “Improper Government Action” is defined as actions: (1) violating the BMC Standards of Conduct; (2) violating the Montana Code of Ethics; (3) “[i]s intended to harass, intimidate, or retaliate against . . . any member of the public”; (4) breaches fiduciary duties to the city or citizens; or (5) creates a substantial or specific public health danger. The allegations regarding violating the BMC Code of Ethics and the Montana Code of Ethics are addressed above and are without merit. As for the remaining ways to commit Improper Government Action, there are no specific allegations, nor facts to support assertions that Bozeman harassed, intimidated, or retaliated against Complainant or any other member of the public, breached fiduciary duties, or created a substantial public health danger. As such, the Board should find the Complaint does not allege any Improper Government Action by Bozeman. F. This Board’s decision is final and it should dismiss these claims with prejudice. Complainant erroneously argues that he could have filed this Complaint with the Commissioner of Political Practices. This is not correct. Section 2–2–144, Montana Code Annotated, enforces the Montana Code of Ethics on local government officers and employees. This law states that if a local government has established a three-member panel to review complaints alleging violations of the Code of Ethics by local government officers and employees, which Bozeman has done, the complaint must be referred to the panel prior to making a complaint to the county attorney. See Mont. Code Ann. § 2–2– 144(5). There are only two instances when a complaint is appropriately forwarded to the commissioner of political practices: one occurs when the complaint is made against the county attorney under subsection (5)(a); and the other occurs if a local government review panel has not been established and a person alleges a violation committed by the county attorney under subsection (6). The Complainant has made allegations about city staff, including the City Attorney. No allegations have been made about the Gallatin County Attorney. Therefore, this panel is the only appropriate review body to hear and decide the merits of this complaint. IV. Conclusion. Bozeman did what any good government should do. It thoughtfully considered and thoroughly investigated Complainant’s issues, examined the relevant code sections in both local and state law, and adopted remedial administrative measures to address 120 Board of Ethics January 7, 2022 Page 14   Complainant’s concerns. Complainant simply does not like the outcome. Disagreement with the outcome does not mean Bozeman acted improperly. The Board should dismiss this Complaint with prejudice. Sincerely, Natasha Prinzing Jones cc: Lara D. Guercio (lguercio@crowleyfleck.com) 121 EXHIBIT A 122 123 124 EXHIBIT B 125 126 EXHIBIT C 127 Lara D. Guercio Crowley Fleck 1915 South 19th Avenue Bozeman, MT 59718 Re: Group Day Care (2107 Highland Court) Ms. Guercio: I have received your letter of formal complaint on behalf of your client regarding the group day care at 2107 Highland Court. The City also received an email from Mr. Zyvoloski on August 13, 2021. This letter responds to both communications. After consulting with the City Attorney and in accordance with our previous advice, the City of Bozeman disagrees that a business license is required to run an otherwise compliant group day care in a residential neighborhood within the City. Therefore, no violation of the Bozeman Municipal Code (BMC) has occurred. First, please be advised that group day cares are authorized in the State of Montana in any residential zone. See Mont. Code Ann. § 76-2-412. Additionally, the BMC addresses and regulates various kinds of daycare facilities in both residential and commercial zoning districts. The property at 2107 Highland Court is in a residential area zoned R-1. A group day care is a principal use in the R-1 zoning district, meaning it is fully permissible under City code. See 38.310.030, BMC. The City understands that not every house or neighborhood will be a good fit for a day care facility, which is in part why the code requires day care facilities to be either licensed or registered with Montana’s Department of Public Health and Human Services (DPHHS). Under DPHHS regulations, group day care facilities must provide proof of liability and fire insurance, minimum amounts of indoor and outdoor space for each child, and specific means of ingress and egress, among many other things. Next, the City generally requires a business to be licensed, unless the business is exempt pursuant to state law or by other provisions of the code. See 12.01.010.A.1, BMC. The State of Montana is the regulatory and licensing authority for many professions, including daycare businesses. The City does not require a business license for the practice of professions regulated by state law. Therefore, the City does not require any licensure of day care businesses beyond what is required by state law. DPHHS Registration requirements for family and group daycares share many similarities with licensure requirements for larger day care centers, including penalties for violations of state law. See Mont. Code Ann. § 52-2-741. 128 Page 2 of 2 Finally, we look forward to the continued involvement of all citizens on updates and edits to the municipal code. Citizens are notified of proposed changes to the municipal code in multiple ways: through the City’s website on City Commission agendas at www.bozeman.net/government/city-commission; by publication in the Bozeman Daily Chronicle legal ads; and by posting in City Hall. Unfortunately, due to the variety of issues and volume of interest on any given topic, it is not possible for the City to provide direct notice to you if the City proposes any changes in the future to municipal codes regarding day care facilities or business license requirements. Sincerely, Marty Matsen Director of Community Development c: Jeff Mihelich, City Manager 129 EXHIBIT D 130 131 132 EXHIBIT E 133 134 135 136 EXHIBIT F 137 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman [City) zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health ofBozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers.Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street \ @P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | © 406-582-2263 j www.bozeman.netTRD- 406-589-9301THF MOST IIVARI F Pl AFF138 Page 2 of 2*fDefinitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code (BMC),the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection^] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.^^^latsenCommunity Development Director139 EXHIBIT G 140 October 27, 2021 City of Bozeman City Commissioners c/o City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: Administrative Appeal of Business License No. 21-69197 for a Home-Based Daycare Dear City Commissioners: I have lived in Bozeman for 20 years and at my current address for 10 years. I’m a new father who is aware of the daycare shortage in Bozeman, and I believe that there is a proper place in our community for home-based daycares. I’m asking the City Commission to take an unbiased review of the City staff’s actions regarding the issuance of a business license to a home-based daycare that is clearly deficient and not compliant with the Bozeman Municipal Code (BMC or Code). I am writing as the Appellant, residing with my family at 2108 Highland Ct., to appeal, in accordance with and pursuant to BMC § 12.02.190, the City of Bozeman's (City) administrative decision to issue on October 13, 2021, a business license (No. 21-69197) to Bibs to Books Playhouse (Applicant) for a daycare/preschool business located at 2107 Highland Ct. The evidence below and enclosed outlines how the City’s administrative staff incorrectly issued a business license in violation of the terms of the BMC. Per BMC, a principal purpose of the City’s Code is to establish procedures (including for any permitted departures, deviations, or variances therefrom) for providing and preserving equitable implementation of the law to “prevent special treatment to particular parties ….” BMC § 38.250.010 (Purpose). The City recently determined that the subject home-based group daycare business is required to obtain a business license. The Applicant’s business license application and the City’s issued business license are enclosed for your review and reference. BMC § Sec. 38.200.100 (Permit issuance; conformity with regulations required) states that “No permit or license of any type will be issued unless the plans and application are in conformance with the regulations contained within this chapter ….” The following items were not completed on the Applicant’s submitted business licensing application, and are highlighted for your reference on the enclosed business license application (No. 21-69197): • Zoning District was left blank • A selection of Home-Based Location vs. Commercial Location box was not selected • Selection for Construction Changes, Electrical Changes, …etc. is not completed • The indication of No Charge was indicated and noted “per Kelley” This application was approved by the Planning Division on the same day it was submitted to the City, but does not conform to the City’s regulations that govern the issuance of and compliance for business 141 licenses, and further does not comply with the standard conditions required for permitted home-based businesses, as set forth in BMC § 38.360.150. Do other businesses in the City get this sort of favoritism—to skip required selections, disregard applicable regulations, and thus bypass the City’s required procedural reviews and further consideration of the additional permits that they may trigger? To preserve public trust, this business license application should have been reviewed with a standard of conduct that maintains fairness and follows the same impartial and transparent procedural review that all other businesses in the City are required to comply by. The City defines a “home-based business” in BMC § Sec.38.700.090 as: “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” A for-profit home-based group daycare business that employs 2 people and cares for 12 children in a single-family residence meets this definition. The City has recognized that home-based businesses can have an impact on residential neighborhoods and dedicated an entire section in the BMC to regulate home-based business. The Code includes a Special Use Permit process that requires home-based businesses to apply for such a permit, with necessary conditions for any allowed special use, if it will have an impact that is greater in scope or more intrusive than the standard permitted home-based business. BMC § 38.360.150.C. The Appellant is asking that the City Commission reverse the City’s decision to issue Business License No. 21-69197 and require that the Applicant cease operating until it can obtain a business license that is compliant with the BMC’s applicable requirements, including the Applicant signing the City’s Home- Based Business Acknowledgement Form and issuance by the City of a Special Use Permit, as necessary, prior to being licensed as a home-based business. In sum, we are requesting that the City Commission require the Applicant’s license application be reviewed by the City in an equitable manner that is consistent with the City’s business licensing regulations, which all other non-exempt businesses are required to comply with. We are confident that the City Commission will recognize that its administrative staff’s decisions and actions related to the City’s issuance of the subject license created a clear violation of the City’s Code and by recognizing this fact, issue a ruling that requires that the Applicant become compliant with the BMC and obtain a properly issued home-based business license before it operates within the City. Per the BMC’s appeal procedures, please schedule a public hearing before the City Commission to hear and issue a final decision within 45 days of this appeal. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 142 cc: Jeff Mihelich, City Manager (USPS and email); Chuck Winn, Assistant City Manager (email); Martin Matsen, Director of Community Development (email); Greg Sullivan, City Attorney (email); Kelley Rischke, Assistant City Attorney (email); Lara Guercio, Appellant Attorney (email) Enclosures: Map Description of the Applicant Property, Business License Application No. 21-69197, Business License No. 21-069197, Bozeman Planning: Home-Based Business Acknowledgement Form 143 Source: Esri, Maxar, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community, Esri, HERE, Garmin, (c) OpenStreetMap contributors, and the GIS user community Business Owner: Bibs to Books Playhouse Property Owner: White Grass LLC THOMPSON ADD 3 AMND, S18, T02 S, R06 E, BLOCK 3, Lot 7, PLAT G-10 Date: 10/25/2021 2107 Highland Ct. 0 30 6015 Feet Bozeman, MT ZonedR-1 H ig h l a n d Ct. 144 BOZEMANMTCity of BozemanSTIFF BUILDING20 East Olive Street, Bozeman, Montana 59715Account # ^.1 - (tf>^ fc)(406) 582-2260NAICS # (^^?L(^IDNEW BUSINESS Q CHANGE OF BUSINESS LOCATION (12.02.070) |~] TRANSFER OF OWNERSHIP (12.02.081["") RENEWAL C") BUSINESS NAME CHANGE |""| MEDICAL MARIJUANA Except Medlcal Marijuana)BUSINESS NAME \^~^'bS -\0 ^^OoVS. "Y\ CK^ h&V.^-^-^, L \ •'PHYSICAL BUSINESS ADDRESS S)\ (}r\ \^ \ CA^J Q AC\ COM r*~ •\ B^2Tj-YU n fr\ T S<? ?/ ^5MAILING ADDRESS So.\Trxf^ 0^. ^^>G>\1 ~cs-CITYSTZIPSTREET ^ 1^-l-CiT(^~ ^--ST^ — ZIPBUS. TELEPHONE s^\lsl^^S? ^ - "<?)r1 S> EMAILADDRESS \^Xx-^CT\-(\\<^7 \^S.IC\ .C(\\^C\ ZONING DISTRICTOWNERFULL LEGAL NAMEPRIMARY TELEPHONE v^(s>l<?-c;' ^ \~<:S~a^rl^_ SECONDARY PHONE.'^^c^/-\Go.ro< ^C^r^-V.YxC FY^UL^^ I..^r\^isCO- OWNER OR MAflAGERFULL LEGAL NAME.f^AGER ti ^->. x „ \ , _ "^>S>w^^^ \ ^ C_v\r ^ S A-i' i^v^ V-t Of\ 0^ S \^c^, \ e ^PRIMARY TELEPHONEMOL&-C?'2>V <-1 •2><-j ^-1 SECONDARY PHONE.^+us pfys'Qse'.ii!-\Q pfVI,"\^o^</ra^^ /-T^^-e S cJ<xooT|_) HOME^ASED LOCATION - $50.00 ^ OUT OF CITC LIMITS LOCATION - $50.00[""J COMMERCIAL LOCATION - $50.00 (Copy of Driver's License Required with Application)What is current use of property:following chsngss?Construction ChangesElectrical ChangesMechanical ChangesPlumbing ChangesNew or Relocated SignsIF COMMERCIALEmergency Contact:NOaaaDaYESaaaaaIF YES, YOU WILL NEEDD Building Permit|""I Electrical PermitO Mechanical Permitj~'j Plumbing Permit|"~| Sign PermitPhone:'PLEASE COMPLETEFire SuppressionSecurity AlarmMonitored By:NOYESaa# of Full Time Employees# of Part Time EmployeesEmail:3:Other Emergency Information:This application is made subject to the terms of the Bozeman Municipal Code. I understand the license issued hereunder is NOT TRANSFERABLEexcept as provided in Chapter 12.02 BMC, and that the inf^nation I have supplied is correct to the best of my knowledge.^m^^^<^aAOJC.->^..Lm|O^A /^^^...^_^^ Date _2&//^/G<>/-FOR OFFICE USE ONLYZoningMVROVB1 REJECTEDBuildingEngineeringFirePoltoePlanning ^JOccupancyConsfructton TypeDATECOMHEfTS:iojt<yu^/c.sft^- Make Checks Payable to: City ofBozeman -145 BOZEMANMTBUSINESS LICENSENO. 21-00069197$ 0.00GRANTED: October 13, 2021BEGINS: October 13, 2021EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMAN MT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER^Bp.^^^•••;..••^;^7--••ys/•^°/*0•Vy^7.v^V<?;••..1883..••A^^..••••..0^^'co.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-2260146 Home-Base Business Acknowledgement Form City of Bozeman, Montana Finance Office PO Box 1230 Bozeman, MT 59715 406.582.2327 To the Community Development Director: I, the undersigned applicant for a Home-Based Business, do hereby certify that I have read and understand the requirements and conditions of Chapter 38.360.140 of the City of Bozeman Zoning Ordinance and agree to abide by all said requirements which regulate and limit the types and intensity of home-based businesses. ________________________________________________________ _________________________ Applicant Date ________________________________________________________ _________________________ Applicant Signature Date Business Name 147 EXHIBIT H 148 Tuesday, December 14, 2021149 Initial Assessment: No Business License Required1. Generally, Bozeman does not require business licenses for professions regulated by the State.2. DPHHS regulates day care providers.3. Bozeman has not historically required day care providers to obtain a business license.4. By state law, day care operations are a residentialuse, not a commercial use.150 Group and Family Day Care Operators Are Not Home-Based Businesses• No more than 1 half time nonresident employee• No more than 25% or 30% of gross area of building can be used• No increased use in utilities like sewer and water• No increase of vehicular traffic by more than one additional vehicle at a time• No noise greater or more frequently than usually experienced in an average residential occupancy151 Day care as a new category of business license:12.02.050 – Administrative Duties.A. The City manager (or appointee) shall have the power to :1. Make rules.The program administrator shall promulgate and enforce rules and regulations necessary to the operation and enforcement of this chapter. All rules are subject to commission review and modification.2. Adopt forms. The program administrator shall adopt all forms and prescribe the information to be given therein as to character and other relevant matter for all necessary papers.152 Summary of DPHHS Registration requirements regarding fire/safety for group daycare facilities:• Proof of current fire and liability insurance to operate a daycare 37.95.106(4)• Written disaster emergency plan 37.95.106(4)• Licensing, registration, and inspection of child care facilities are the responsibility of the department with the exception of the required local health authority and state fire marshal inspections. 37.95.108(3)• If multiple programs, including multiple day care programs or facilities in the same building, increase the number of people regularly in the building to more than 12 individuals, all fire, safety and sanitation requirements which may be impacted must be complied with by the day care facility. 37.95.117(3)• Persons, corporations or organizations may be licensed or registered for more than one day care facility if facility sites, staff, and space are completely separate from one another. (a) If the day care facility is housed in a private single-family living structure, the structure can only obtain one registration or license. 37.95.117(4)(a)• General safety requirements 37.95.121; see in particular subsection 13 re: ingress and egress• (13) In an emergency, all occupants must be able to escape from the facility, whether a home or building, in a safe and timely manner. (a) All facilities must have two accessible exits on each level. The two exits must be far enough apart from one another to avoid having them both blocked by fire and smoke. Aisle ways and corridors leading to the exits must be kept clear of obstructions. (b) If the day care provider chooses to lock the facility door to prevent unauthorized access to the facility or to prevent a child from escaping, the facility shall have no lock or fastening device which prevents free escape from the interior. (c) The locking device must not require a key, a tool, or special knowledge or effort to open the door from the inside. (d) The locked door must be easily opened with one motion from the inside of the facility. (e) Installation of locking devices may not prohibit access by parents. A facility may not utilize locking devices in a manner to prevent unannounced access by authorized individuals, including parents. If a lock is used, the provider must make adequate provision to allow authorized persons unannounced access to the facility and must provide authorized personnel including parents with information on how to gain access. (f) Exit doors, windows, and their opening hardware must be maintained in good repair atall times.• Emergency Disaster and Action Plan requirements 37.95.124• Smoke free environment 37.95.126• Building Requirements 37.95.705 • (1) Each facility must have a minimum of 35 square feet of indoor play and learning space per child, as well as 75 square feet of outdoor play space per child. • (2) Each level of the facility used for child care purposes must have at least two means of emergency egress. • (a) One egress must be a door that is at least 32 inches wide and 80 inches tall. • (b) The second egress may be a window that provides a clear opening of at least 20 inches in width and 5.7 sq. feet in area. The bottom of the exit must not be more than 44 inches above the floor. • (c) All identified means of egress must be unobstructed at all times. • (3) All nap rooms must have at least two egresses, which meet the requirements of (2). • (4) All rooms must be dry, well ventilated, and well lit. • (5) Third stories in dwellings must not be used for child care purposes and must be barricaded or locked to prevent entry by children. • (6) Doorways and stairs must be clear of any obstruction. • (7) Every closet door must be such that children can open the door from the inside. • (8) Every bathroom door must be designed to permit the opening of the locked door from the outside in an emergency and the opening device must be readily accessible to the provider. • (9) Electrical outlets must be tamper resistant or covered in areas occupied by children under five years of age. • (10) The building and grounds used by children must be maintained to ensure the following: • (a) the building is in good repair; • (b) the floors, walls, ceilings, furnishings, and other equipment are reasonably clean; • (c) the building and grounds are reasonably free of insects, rodents, and other vermin; and • (d) the children attending the facility shall not be exposed to paint containing lead in excess of .06%.• Fire Safety Requirements 37.95.706 • (1) In an emergency, all occupants of the child care facility must be able to escape from the building in a safe and timely manner. • (2) A fire extinguisher must be easily accessible on each floor level, have a minimum level of extinguisher classification of 2A10BC, and be mounted near outside exit doors. 26 • (3) All child care facilities must have operating UL smoke alarms on each floor of the facility, installed in accordance with the manufacturer's specifications. Smoke alarms must be installed in front of the doors to stairways, in corridors of all floors, and in all rooms where children sleep. • (4) Smoke alarms must be tested at least once a month to ensure that they are operating correctly and must be replaced every 10 years. • (5) All wood burning stoves must meet building codes. If used during the hours of care, the stove must have a protective enclosure. • (6) No portable electric or unvented fuel-fired heating devices are allowed. All radiators, if too hot to touch, must have a protective enclosure. • (7) The facility must post an evacuation plan and maintain the fire safety record as defined in ARM 37.95.124.153 Administrative Rule 2021-01154 Appeal Should Be Denied Because:1. No special treatment was afforded to Bibs to Books Playhouse;2. Group and Family day care businesses are not home-based businesses as regulated in the BMC.3. Regulations requiring business licenses apply to all day care businesses equally;4. City exercised its express rulemaking authority to promulgate Admin Rule.155 Public Comment•7 public comments have been received as of this afternoon. Comments focus on traffic and parking issues and impacts of the daycare on the neighbors. 156 Suggested Motion:Having reviewed and considered this appeal of the City’s issuance of business license number 21-69197 to Bibs to Books Playhouse, including the staff report, record of review, the presentation of staff and the Appellant, public comment, and all information presented, I move to uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197. 157 158 Exemptions from business licensing requirements 12.02.040:A. Deliveries within the City by businesses outside City limits.B. Nonprofit Organizations.C. Any person under 18.D. Property managers renting less than three dwelling units.E. Short term rentals 159